{"id":42269,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/engagement-letter-commonwealth-associates-l-p-and-drkoop-com.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"engagement-letter-commonwealth-associates-l-p-and-drkoop-com","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/engagement-letter-commonwealth-associates-l-p-and-drkoop-com.html","title":{"rendered":"Engagement Letter &#8211; Commonwealth Associates L.P. and DrKoop.com Inc."},"content":{"rendered":"<pre>\n                                                                  June 8, 2001\n\nRichard Rosenblatt\nDr.koop.com, Inc.\n225 Arizona Avenue, Suite 250\nSanta Monica, CA 90401\n\n\nGentlemen:\n\n            The purpose of this letter is to confirm the engagement of\nCommonwealth Associates, L.P. (\"Commonwealth\") as exclusive financial advisor\nfor dr. koop.com (the \"Company\") in connection with its efforts to obtain a\nsenior secured loan (\"Senior Financing\") and\/or subordinated loan (the\n\"Subordinated Financing\" and together with the Senior Financing collectively\nreferred to as the \"Financing\"). The terms pursuant to which Commonwealth is to\nassist and advise the Company in connection with the Financing:\n\n      1.    Services. The Company hereby engages Commonwealth as its exclusive\nfinancial advisor in connection with the Financing. In connection therewith,\nCommonwealth shall provide the following services: (i) advise the Company with\nrespect to the form and structure of the proposed Financing; (ii) assist the\nCompany in developing any necessary materials; (iii) identify and make contact\nwith prospective financing sources; (iv) assist the Company in conducting\npresentations and due diligence meetings with prospective financing sources; and\n(v) provide such other financial advisory and investment banking services\nrequired to close the Financing.\n\n      2.    Information. In connection with Commonwealth's activities on the\nCompany's behalf, the Company will furnish Commonwealth or prospective financing\nsources with all information that it may reasonably request and provide\nCommonwealth or prospective financing sources reasonable access to Company\nofficers, directors, accountants and counsel.\n\n      3.    Compensation. In consideration of Commonwealth's services,\nCommonwealth shall be entitled to receive, and the Company hereby agrees to pay\nCommonwealth the following:\n\n      (a)   Upon execution of a Senior Financing definitive loan document the\n            Company agrees to pay to Commonwealth in cash a fee of $100,000.\n\n      (b)   Upon execution of a Subordinated Financing definitive loan document\n            the Company agrees to pay to Commonwealth in cash a fee of $100,000.\n\n      4.    Expenses. In addition to the compensation described in Section 3\nabove, the Company agrees to promptly reimburse Commonwealth, upon request from\ntime to time, for all out-of-pocket expenses incurred (including, without\nlimitation, travel and lodging expenses, reasonable fees and disbursements of\nCommonwealth's counsel, and fees and disbursements of other consultants and\nadvisors retained by Commonwealth) in connection with Commonwealth's services\npursuant to this Agreement. Apart from such expenses, the Company shall be\nresponsible for its own expenses incurred in connection with the Financing,\nincluding, without limitation, legal and accounting fees and travel and lodging\nexpenses.\n\n      5.    Governing Law\/Resolution of Disputes. The validity and\ninterpretation of this Agreement shall be governed by the law of the State of\nNew York applicable to agreements made and to be fully performed therein.\nCommonwealth and the Company will attempt to settle any claim or controversy\narising out of this Agreement \n\n\n   2\n\nthrough consultation and negotiation in good faith and a spirit of mutual\ncooperation. If those attempts fail, then the dispute will be mediated by a\nmutually acceptable mediator to be chosen by Commonwealth and the Company within\n15 days after written notice from either party demanding mediation. Neither\nparty may unreasonably withhold consent to the selection of a mediator, and the\nparties will share the costs of the mediation equally. Any dispute which the\nparties cannot resolve through negotiation or mediation within six months of the\ndate of the initial demand for it by one of the parties may then be submitted to\nbinding arbitration under the rules of the American Arbitration Association of\nNew York for resolution. The use of mediation will not be construed under the\ndoctrine of latches, waiver or estoppel to affect adversely the rights of either\nparty. Nothing in this paragraph will prevent either party from resorting to\njudicial proceedings if (a) good faith efforts to resolve the dispute under\nthese procedures have been unsuccessful or (b) interim relief from a court is\nnecessary to prevent serious and irreparable injury.\n\n      6.    Successors and Assigns. The benefits of this Agreement shall inure\nto the respective successors and assigns of the parties hereto, their\nsuccessors, assigns and representatives, and the obligations and liabilities\nassumed in this Agreement by the parties shall be binding upon their respective\nsuccessors and assigns; provided, that the rights and obligations of either\nparty under this Agreement may not be assigned without the prior written consent\nof the other party and any other purported assignment shall be null and void.\n\n      7.    Miscellaneous.\n\n      (a)   The following conditions apply:\n\n            (i)   It is understood that the obligation of Commonwealth is to use\n      its best efforts to secure the Financing and there is no obligation on the\n      part of Commonwealth to participate in such Financing.\n\n            (ii)  The Company hereby represents that it is a sophisticated\n      business enterprise that has retained Commonwealth for the limited\n      purposes set forth in this letter, and the parties acknowledge and agree\n      that their respective rights and obligations are contractual in nature.\n      Each party disclaims an intention to impose fiduciary obligations on the\n      other by virtue of the engagement contemplated by this letter.\n\n      (b)   The Company shall not issue any press release or other information\nregarding the Financing without the prior written consent of Commonwealth.\n\n      8.    Termination. Commonwealth's engagement hereunder may be terminated\nby either the Company or Commonwealth at any time after 60 days from the date\nhereunder, with or without cause, upon written advice to that effect to the\nother party after 60 days from the date hereof; provided, however, that\nnotwithstanding any such termination, Commonwealth will be entitled to 100% of\nits full fee under Section 3 hereof in the event that at any time prior to the\nexpiration of 12 months after such termination, a Senior Financing is\nconsummated with any party introduced to the Company by Commonwealth, or who the\nCompany requested that we provide any services hereunder in connection therewith\nduring the term of Commonwealth's engagement hereunder (\"Commonwealth\nProspects\"). Not more than 10 business days after termination, Commonwealth\nshall provide in writing its proposed list of Commonwealth Prospects which shall\nbe binding unless the Company provides a written objection within 10 days of\nreceipt whereupon any dispute shall be resolved in accordance with Section 5\nherein. The provisions of this Section 8 and Section 3, 4 and 5 hereof shall\nsurvive such termination.\n\n\n\n                                       2\n   3\n\n            If the foregoing is acceptable, please sign a copy of this letter in\nthe space provided below and return the copy to the undersigned by June 8, 2001.\nIf an executed copy of the letter agreement is not received on or prior to such\ndate, this letter shall be void and of no further force or effect.\n\n                                Very truly yours,\n\n                                COMMONWEALTH ASSOCIATES, L.P.\n\n\n\n                                By: \/s\/ MICHAEL FALK\n                                   -----------------------------------------\n\nConfirmed and Agreed to this\n___ day of __________, 2001\n\n\n\nDR.KOOP.COM\n\n\n\nBy: \/s\/ ED CESPEDES\n   --------------------------\n\n\n\n                                       3\n   4\n\n                           INDEMNIFICATION PROVISIONS\n\n\n            dr.koop.com (the \"Company\") agrees to indemnify and hold harmless\nCommonwealth Associates, L.P. (\"Commonwealth\") against any and all losses,\nclaims, damages, obligations, penalties, judgments, awards, liabilities, costs,\nexpenses and disbursements (and any and all actions, suits, proceedings and\ninvestigations in respect thereof and any and all legal and other costs,\nexpenses and disbursements in giving testimony or furnishing documents in\nresponse to a subpoena or otherwise), including, without limitation, the costs,\nexpenses and disbursements, as and when incurred, of investigating, preparing or\ndefending any such action, suit, proceeding or investigation (whether or not in\nconnection with litigation in which Commonwealth is a party), directly or\nindirectly, caused by, relating to, based upon, arising out of, or in connection\nwith Commonwealth's acting for the Company, including, without limitation, any\nact or omission by Commonwealth in connection with its acceptance of or the\nperformance or non-performance of its obligations under the Agreement, dated\nApril 27, 2001, between the Company and Commonwealth to which these\nindemnification provisions are attached and form a part (the \"Agreement\"). The\nCompany also agrees that Commonwealth shall not have any liability (whether\ndirect or indirect, in contract or tort or otherwise) to the Company for or in\nconnection with the engagement of Commonwealth, except to the extent that any\nsuch liability is found in a final judgment by a court of competent jurisdiction\n(not subject to further appeal) to have resulted primarily and directly from\nCommonwealth's gross negligence or willful misconduct.\n\n            The indemnification provisions shall be in addition to any liability\nwhich the Company may otherwise have to Commonwealth or the persons indemnified\nbelow in this sentence and shall extend to the following: Commonwealth, its\naffiliated entities, partners, employees, legal counsel, agents and controlling\npersons (within the meaning of the federal securities laws), and the officers,\ndirectors, employees, legal counsel, agents and controlling persons of any of\nthem. All references to Commonwealth in these indemnification provisions shall\nbe understood to include any and all of the foregoing.\n\n            If any action, suit, proceeding or investigation is commenced, as to\nwhich Commonwealth proposes to demand indemnification, it shall notify the\nCompany with reasonable promptness; provided, however, that any failure by\nCommonwealth to notify the Company shall not relieve the Company from its\nobligations hereunder except to the extent that the Company is materially\nprejudiced thereby. If the Company so elects, or is requested by Commonwealth,\nthe Company will assume the defense of such action, suit, proceeding or\ninvestigation, including the employment of counsel reasonably acceptable to\nCommonwealth, and the payment of the fees and disbursements of such counsel. In\nthe event, however, that the Company fails to promptly assume the defense\nthereof with counsel reasonably acceptable to Commonwealth, or Commonwealth\ndetermines in its reasonable judgment that it has one or more defenses different\nthan or in addition to those of the Company, then Commonwealth shall have the\nright to retain one counsel (in addition to any local counsel) of its own choice\nto represent it, and the Company shall pay the fees, expenses and disbursements\nof such counsel; and such counsel shall, to the extent consistent with its\nprofessional responsibilities, cooperate with the Company and any counsel\ndesignated by the Company. The Company shall be liable for any settlement of any\nclaim against Commonwealth made with the Company's written consent, which\nconsent shall not be unreasonably withheld. The Company shall not, without the\nprior written consent of Commonwealth, settle or compromise any claim, or permit\na default or consent to the entry of any judgment in respect thereof, unless\nsuch settlement, compromise or consent includes, as a unconditional term\nthereof, the giving by the claimant to Commonwealth of an unconditional release\nfrom all liability in respect of such claim.\n\n            In order to provide for just and equitable contribution, if a claim\nfor indemnification pursuant to these indemnification provisions is made but it\nis found in a final judgment by a court of competent jurisdiction (not subject\nto further appeal) that such indemnification may not be enforced in such case,\neven though the express provisions hereof provide for indemnification in such\ncase, then the Company, on the one hand, and \n\n\n\n                                       4\n   5\n\nCommonwealth, on the other hand, shall contribute to the losses, claims,\ndamages, obligations, penalties, judgments, awards, liabilities, costs,\nexpenses, and disbursements to which the indemnified persons may be subject in\naccordance with the relative benefits received by the Company, on the one hand,\nand Commonwealth, on the other hand, and also the relative fault of the Company,\non the one hand, and Commonwealth, on the other hand, in connection with the\nstatements, acts or omissions which resulted in such losses, claims, damages,\nobligations, penalties, judgments, awards, liabilities, costs, expenses or\ndisbursements and the relevant equitable considerations shall also be\nconsidered. No person found liable for a fraudulent misrepresentation shall be\nentitled to contribution from any person who is not also found liable for such\nfraudulent misrepresentation. Notwithstanding the foregoing, Commonwealth shall\nnot be obligated to contribute any amount hereunder that exceeds the amount of\nfees previously received by Commonwealth pursuant to this Agreement.\n\n            Neither termination nor completion of the engagement of Commonwealth\nreferred to above shall affect these indemnification provisions which shall then\nremain operative and in full force and effect.\n\n\n                                       5\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7359],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9613,9620],"class_list":["post-42269","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-drkoopcom-inc","corporate_contracts_industries-health__misc","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42269","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42269"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42269"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42269"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42269"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}