Exhibit 99.1
FEE SHARING
AGREEMENT
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 One Great Cumberland Place, London W1H 7AL; DEMATCO
INC (“DEMATCO”) and its subsidiaries of 17337 Ventura
Boulevard, Suite 208, Encino, CA 91316 (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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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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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).
(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.
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freely tradable
and not subject to any claim by any third-party;
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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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attributed unique identification numbers;
and
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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
