EXHIBIT 10.25
PLACEMENT AGENCY AGREEMENT
THIS PLACEMENT AGENCY AGREEMENT ("Agreement") is made as of this 28th
day of August, 2000, by and between TCPI, Inc., a Florida Corporation
("Company"), The May Xxxxx Group, Inc., a Maryland corporation (the "Agent").
WITNESSETH:
WHEREAS, the Company proposes to issue and sell, pursuant to the
Securities Purchase Agreement, One Million Five Hundred Thousand Dollars
($1,500,000) of debentures (the "Debentures"), convertible into shares of common
stock, par value $0.001 per share, of the Company (the "Securities"), resulting
in gross proceeds to the Company of $1,500,000 (the "Offering") in one or more
series of transactions outside of the U.S. to purchasers who are not citizens or
residents of the U.S., and not involving a public offering and without
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to one or more of the exemptions from the registration requirements of the Act
provided by Section 4(2), Rule 506 of Regulation D promulgated under the Act
("Regulation D"), or Regulation S promulgated under the Act ("Regulation D") as
described below; and
WHEREAS, the Agent is willing to assist the Company in placing the
Securities on a "best efforts basis" basis and the Company desires to secure the
services of the Agent on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
promises, conditions and covenants herein contained, the parties hereto do
hereby agree as follows:
1. Engagement of Agent. The Company hereby appoints the Agent as
its placement agent for the Offering pursuant to the Securities Purchase
Agreement, on a "best efforts" resulting in gross proceeds to the Company of
$1,500,000 (the "Maximum Amount"). The Agent, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, accepts such appointment and agrees to use its
reasonable best efforts to find purchasers for the Securities. This appointment
shall be irrevocable for the period commencing as of the date hereof and ending
as further described in Section 8, which period may be extended by the consent
of the Company and the Agent (the "Offering Period").
2. Representations and Warranties of the Company. In order to
induce the Agent to enter into this Agreement, the Company hereby represents and
warrants to and agrees with the Agent as follows:
2.1. Organization and Qualification. The Company and its
subsidiaries are corporations duly organized and validly existing in
good standing under the laws of the jurisdiction in which they are
incorporated, and have the requisite corporate power to own their
properties and to carry on their business as now being conducted. Each
of the Company and its subsidiaries is duly qualified as a foreign
corporation to do business and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes
such qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
2.2. Authorization, Enforcement, Compliance with Other
Instruments. The Company has the requisite corporate power and
authority to enter into and perform this Agreement. This Agreement has
been duly authorized by the Company's Board of Directors and no further
consent or authorization is required by the Company, its Board of
Directors or its stockholders. This Agreement, constitutes the valid
and binding obligations of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
2.3. No Conflicts. Except as disclosed in Schedule 2.3, the
execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby will not (i) result in a violation of the Certificate of
Incorporation, any Certificate of Designations, Preferences, and Rights
of any outstanding series of preferred stock of the Company or By-laws
or (ii) conflict with or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party, or, to the best of the
Company's knowledge, result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state
securities laws and regulations and the rules and regulations of The
Nasdaq Stock Market, Inc.'s National Market or OTC Bulletin Board on
which the common stock, $0. 001 par value per share, of the Company
("Common Stock") is quoted) applicable to the Company or any of its
subsidiaries or by which any property or asset of the Company or any of
its subsidiaries is bound or affected. Except as disclosed in Schedule
2.3, neither the Company nor its subsidiaries is in violation of any
term of or in default under its Certificate of Incorporation or By-laws
or their organizational charter or by-laws, respectively, or any
material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or
regulation applicable to the Company or its subsidiaries. To the best
knowledge of the Company, the business of the Company and its
subsidiaries is not being conducted, and the Company shall use its best
efforts to assure that it shall not in all material respects be
conducted in violation of any law, ordinance, regulation of any
governmental entity. Except as specifically contemplated by this
Agreement and as required under the Act and any applicable state
securities laws, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or
perform any of its obligations under or contemplated by this Agreement
in accordance with the terms hereof or thereof. Except as disclosed in
Schedule 2.3, all consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the
preceding sentence have been obtained or effected on or prior to the
date hereof. The Company and its subsidiaries are unaware of any facts
or circumstances, which might give rise to any of the foregoing.
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2.4. SEC Documents: Financial Statements. The Company has
filed all reports, schedules, forms, statements and other documents
required to be filed by it with the Securities and Exchange Commission
("SEC") pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act") (all of the foregoing
filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated
by reference therein, being hereinafter referred to as the "SEC
Documents"). The Company has delivered to the Agent or its
representative, or made available through the SEC's electronic web site
located at xxxx://xxx.xxx.xxx, true and complete copies of the SEC
Documents. As of their respective dates, the financial statements of
the Company disclosed in the SEC Documents (the "Financial Statements")
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles, consistently
applied, during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in
the case of un-audited interim statements, to the extent they may
exclude footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the Company
as of the dates thereof and the results of its operations and cash
flows for the periods then ended (subject, in the case of un-audited
statements, to normal year-end audit adjustments). No other information
provided by the Company in writing to the Buyer which is not included
in the SEC Documents, including, without limitation, information
referred to in Section 2.6 of this Agreement, contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstance under which they are or were made, not misleading.
2.5. Absence of Litigation. Except as disclosed in the SEC
Documents, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of
the Company or any of its subsidiaries, threatened against or affecting
the Company, the Common Stock or any of the Company's subsidiaries,
wherein an unfavorable decision, ruling or finding would (i) have a
material adverse effect on the transactions contemplated hereby (ii)
adversely affect the validity or enforceability of, or the authority or
ability of the Company to perform its obligations under, this Agreement
or any of the documents contemplated herein or (iii) except as
expressly disclosed in the SEC Documents, have a material adverse
effect on the business, operations, properties, financial condition or
results of operation of the Company and its subsidiaries taken as a
whole.
2.6. No Materially Adverse Contracts, Etc. Except as set forth
in the SEC Documents, neither the Company nor any of its subsidiaries
is subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation which in the judgment of
the Company's officers has or is expected in the future to have a
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material adverse effect on the business, properties, operations,
financial condition, results of operations or prospects of the Company
or its subsidiaries. Neither the Company nor any of its subsidiaries is
a party to any contract or agreement which in the judgment of the
Company's officers has or is expected to have a material adverse effect
on the business, properties, operations, financial condition, results
of operations or prospects of the Company or its subsidiaries.
3. Issue, Sale and Delivery of the Securities.
3.1. Deliveries of Securities. Certificates in such form,
subject to applicable transfer restrictions as described in the
Securities Purchase Agreement proposed to be entered into between the
Company and Investors ("Purchase Agreement"), and and copies of
warrants representing the Agent's and Xxxxxx Xxxxxxxx'x warrant
compensation described in Section 3.4(b) below ("Warrants"), shall be
delivered by the Company to counsel to the Agent, with copies made
available to the Agent for checking at least one (1) full business day
prior to the Closing Date, it being understood that the directions from
the Agent to the Company shall be given at least two (2) full business
days prior to the Closing Date. The certificates for the Securities and
the Warrants shall be delivered at the Closing (as hereinafter
defined).
3.2. Escrow of Funds. Pending Closing purchasers shall place all
funds for purchase of Securities, in an escrow account with an escrow
agent to be designated by the Company and the Placement Agent ("Escrow
Agent") and as set up by the Company in accordance with the terms of an
escrow agreement between the Company, the Agent and the Escrow Agent.
The Company shall have the right to approve or object to the
subscriptions of any purchaser. At such time as purchasers purchasing
the Debentures have delivered to the Agent a signed Purchase Agreement,
and provided those purchasers have been approved by the Company and all
other Closing conditions have been met, Escrow Agent shall release the
subscription funds to the Company and the Company shall release the
certificates representing the Securities to the subscribers (the
"Closing"). In the event the Closing is not held on or before August
28, 2000, (the "Escrow Period") all subscription proceeds shall be
immediately returned to purchasers without deduction or charge by the
Escrow Agent, unless the Escrow Period is extended by the parties
mutually.
3.3. Closing Date. The Closing shall take place at the offices of
Xxxxxx Xxxxxxxx LLP, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxx, Xxx Xxxxxx
00000 at such time and date ("Closing Date") as will be fixed either
orally or in writing by notice to be given by the Agent to the Company
after consultation with the Company, such Closing Date to be not less
than one (1) full business day after the date on which such notice
shall have been given. The Closing Date may be changed by mutual
written agreement of the Agent and the Company.
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3.4. Agent's Compensation. The Company shall pay the Agent:
(a) A commission of Ten Percent (10%) of the gross subscription
proceeds received by the Company, pursuant to the sale of the
Debentures, pursuant to the Securities Purchase Agreement at the
Closing to be paid in cash or Common Stock of the Company as
determined by the Agent (the "Gross Proceeds"); and
(b) In addition to the fees and reimbursement of costs set
forth in Sections 3.4(a) and 3.5 of this Agreement, upon closing
with respect to the sale of the Debentures at the Closing, the
Company shall issue to the Agent, and/or its assignees warrants to
purchase up to 2,000,000 shares of the Company's Common Stock. Such
warrants shall be exercisable at a price of $1.50. The Warrants
shall have cashless exercise provisions which shall expire
immediately upon the declaration of effectiveness of a registration
statement applicable to the securities. The term of the Warrants
shall be five years. The Company shall have the right to force
conversion of the Warrants if the common stock of the Company closes
as a bid price of $3.00 or higher for ten (10) consecutive trading
days. The shares of Common Stock issuable upon exercise of the
Warrants shall have registration rights as described in the
Registration Rights Agreement, it being understood that, if the SEC
requires removal of the Warrants from any registration statement in
which the Warrants have a right by contract to be included, the
removal of the Warrants shall not constitute a breach of contract by
the Company, and the Company will use best efforts to include the
Warrants (or underlying shares) in a registration statement in a
manner acceptable to the SEC. Except as set forth in the immediately
preceding sentence, it is specifically understood by the Company
that the Company must register the Shares underlying the Warrants
for the Agent in the same registration statement described in the
Registration Rights Agreements between the Company and purchasers
and contemplated by the Purchase Agreement. The Warrants shall be
delivered by the Company to the Agent simultaneous with and
contingent upon a Closing with respect to the Maximum Amount.
3.5. Payment of Fees. The Escrow Agent shall be instructed at
closing to:
(a) Pay the Placement Agent's fees and all of the reasonable
legal, administrative, and escrow fees, associated with the sale of
the Debentures, of The May Xxxxx Group, Inc.'s counsel, Xxxxxx
Xxxxxxxx, LLP, in the amount of Seventeen Thousand Five Hundred
Dollars ($17,500), directly to the Agent's counsel from the proceeds
of the sale of the Debentures simultaneous with the transfer of
proceeds to the Company
(b) In addition to the fees and reimbursement of costs set
forth in Sections 3.5 of this Agreement, upon closing with respect
to the sale of the Debentures at the Closing, the Company shall
issue to the Xxxxxx Xxxxxxxx, LLP., and/or its assignees
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warrants to purchase ten thousand (10,000) shares of the Company's
Common Stock. Such warrants shall be exercisable at a price of
$1.50. The Warrants shall have cashless exercise provisions which
shall expire immediately upon the declaration of effectiveness of a
registration statement applicable to the securities. The term of the
Warrants shall be five years. The Company shall have the right to
force conversion of the Warrants if the common stock of the Company
closes as a bid price of $3.00 or higher for ten (10) consecutive
trading days. The shares of Common Stock issuable upon exercise of
the Warrants shall have registration rights as described in the
Registration Rights Agreement, it being understood that, if the SEC
requires removal of the Warrants from any registration statement in
which the Warrants have a right by contract to be included, the
removal of the Warrants shall not constitute a breach of contract by
the Company, and the Company will use best efforts to include the
Warrants (or underlying shares) in a registration statement in a
manner acceptable to the SEC. Except as set forth in the immediately
preceding sentence, it is specifically understood by the Company
that the Company must register the Shares underlying the Warrants
for the Agent in the same registration statement described in the
Registration Rights Agreements between the Company and purchasers
and contemplated by the Purchase Agreement. The Warrants shall be
delivered by the Company to the Xxxxxx Xxxxxxxx, LLP simultaneous
with and contingent upon a Closing with respect to the Maximum
Amount.
4. Offering of the Securities on Behalf of the Company.
4.1. In offering the Securities for sale, the Agent shall
offer them solely as an agent for the Company, and such offer shall be
made upon the terms and subject to the conditions set forth in the
Securities Purchase Agreement. The Agent shall commence making such
offer as an agent for the Company as soon as possible following
delivery of the Purchase Agreement and shall conduct such offering in
accordance will all applicable laws.
4.2. The Agent will not make offers to sell the Securities to,
or solicit offers to subscribe for any Securities from, persons or
entities that are not "accredited investors" as defined in Regulation
D.
5. Non-Circumvention. The Company hereby agrees as follows:
5.1. The Company agrees to maintain the confidentiality of the
Agent's clients, except as required by applicable law. Such clients
shall be those entities, which invest or have been offered an
opportunity to invest by the Agent in the Offering (the "Clients"). For
a period of two years from the Closing, the Company will not solicit or
enter into any financing transaction with the Clients without the
written consent of Agent and payment to Agent compensation no less than
the compensation to be paid to Agent hereunder for raising a like
amount.
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5.2. In the event that Company breaches Section 5.1 of this
Agreement, Agent shall be entitled to receive compensation in the same
proportion to the financing done without Agent's participation as the
compensation to Agent under this Agreement bears to the financing
raised in this Offering.
6. Covenants of the Company. The Company covenants and agrees
with the Agent that:
6.1. After the date hereof, the Company will not at any time,
prepare and distribute any amendment or supplement to the Securities
Purchase Agreement, of which amendment the Agent shall not previously
have been advised and the Agent and its counsel furnished with a copy
within a reasonable time period prior to the proposed adoption thereof,
or to which the Agent shall have reasonable objected in writing on the
ground that it is not in compliance with the Act or the Rules and
Regulations under the Act (if applicable).
6.2. The Company will pay, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented
from becoming effective or is terminated, all costs and expenses
incident to the performance of its obligations under this Agreement,
including all expenses incident to the authorization of the Securities
and their issue and delivery to the purchasers, any original issue
taxes in connection therewith, all transfer taxes, if any, incident to
the initial sale of the Securities, the fees and expenses of the
Company's counsel and Agent's counsel as set forth in Section 3.5
(except as provided below) and accountants, the cost of reproduction
and furnishing to the Agent copies of the Purchase Agreement as herein
provided.
6.3 Prior to the Closing Date, and during the normal business
hours, the Company will cooperate with the Agent in such investigation
as it may make or cause to be made of all of the properties, business
and operations of the Company in connection with the Offering of the
Securities. The Company will make available to it in connection
therewith such information in its possession as the Agent may
reasonably request and will make available to the Agent such persons as
the Agent shall deem reasonably necessary and appropriate in order to
verify or substantiate any such information so supplied.
6.4 The Company shall be responsible for making any and all
filings required by the Blue Sky authorities and filings required by
the laws of the jurisdictions in which the purchasers who are accepted
for purchase of Securities are located, if any. Agent shall assist
Company in this respect, but such filings shall be the responsibility
of Company.
6.5 Corporation Condition. The Company's condition is as
described in the Purchase Agreement and the SEC Documents referred to
therein, except for changes in the ordinary course of business and
normal year-end adjustments that are not individually or in the
aggregate materially adverse to the Company.
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6.6 No Material Adverse Change. Except as may be reflected in
or contemplated by the Purchase Agreement prior to the Closing, there
shall not have been any material adverse change in the condition,
financial, or otherwise, or in the results of operations of the Company
or in its business taken as a whole.
7. Indemnification.
7.1. The Company agrees to indemnify and hold harmless the
Agent, each person who controls the Agent within the meaning of Section
15 of the Act and the Agent's employees, accountants, attorneys and
agents (the "Agent's Indemnitees") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the Act or any other statute or at common law
for any legal or other expenses (including the costs of any
investigation and preparation) incurred by them in connection with any
litigation, whether or not resulting in any liability, but only insofar
as such losses, claims, damages, liabilities and litigation arise out
of or are based upon any untrue statement of material fact contained in
the Securities Purchase Agreement or any amendment thereto or any
application or other document filed in any state or jurisdiction in
order to qualify the Securities under the Blue Sky or securities laws
thereof, or the omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, under
the circumstances under which they were made, not misleading, all as of
the date of the Purchase Agreement or of such amendment as the case may
be; provided, however, that the indemnity agreement contained in this
Section 7.1 shall not apply to amounts paid in settlement of any such
litigation, if such settlements are made without the consent of the
Company, nor shall it apply to the Agent's Indemnitees in respect to
any such losses, claims, damages or liabilities arising out of or based
upon any such untrue statement or any such omission, if such statement
or omission was made solely in reliance upon information furnished in
writing to the Company by the Agent specifically for use in connection
with the preparation of the Purchase Agreement or any such amendment
thereto or any application or other document filed in any state or
jurisdiction in order to qualify the Securities under the Blue Sky or
securities law thereof. This indemnity agreement is in addition to any
other liability, which the Company may otherwise have to the Agent's
Indemnitees. The Agent's Indemnitees agree, within ten (10) days after
the receipt by them of written notice of the commencement of any action
against them in respect to which indemnity may be sought from the
Company under this Section 7.1, to notify the Company in writing of the
commencement of such action; provided, however, that the failure of the
Agent's Indemnitees to notify the Company of any such action shall not
relieve the Company from any liability which it may have to the Agent's
Indemnitees on account of the indemnity agreement contained in this
Section 7.1, and further shall not relieve the Company from any other
liability which it may have to the Agent's Indemnitees, and if the
Agent's Indemnitees shall notify the Company of the commencement
thereof, the Company shall be entitled to participate in (and, to the
extent that the Company shall wish, to direct) the defense thereof at
its own expense, but such defense shall be conducted by counsel of
recognized standing and reasonably satisfactory to the Agent's
Indemnitees, defendant or defendants, in such litigation. The Company
agrees to notify the Agent's Indemnitees promptly of the commencement
of any litigation or proceedings
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against the Company or any of the Company's officers or directors of
which the Company may be advised in connection with the issue and sale
of any of the Securities and to furnish to the Agent's Indemnitees, at
their request, to provide copies of all pleadings therein and to permit
the Company's Indemnitees to be observers therein and apprise the
Agent's Indemnitees of all developments therein, all at the Company's
expense.
7.2. The Agent agrees, in the same manner and to the same
extent as set forth in Section 7.1 above, to indemnify and hold
harmless the Company, and the Company's employees, accountants,
attorneys and agents (the "Company's Indemnitees") with respect to (i)
any statement in or omission from the Purchase Agreement or any
amendment thereto or any application or other document filed in any
state or jurisdiction in order to qualify the Securities under the Blue
Sky or securities laws thereof, or any information furnished pursuant
to Section 3.4 hereof, if such statement or omission was made solely in
reliance upon information furnished in writing to the Company by the
Agent on its behalf specifically for use in connection with the
preparation thereof or supplement thereto, or (ii) any untrue statement
of a material fact made by the Agent or its agents not based on
statements in the Purchase Agreement or authorized in writing by the
Company, or with respect to any misleading statement made by the Agent
or its agents resulting from the omission of material facts which
misleading statement is not based upon the Purchase Agreement, or
information furnished in writing by the Company or, (iii) any breach of
any representation, warranty or covenant made by the Agent in this
Agreement. The Agent's liability hereunder shall be limited to the
amount received by it for acting as Agent in connection with the
Offering. The Agent shall not be liable for amounts paid in settlement
of any such litigation if such settlement was effected without its
consent. In case of the commencement of any action in respect of which
indemnity may be sought from the Agent, the Company's Indemnitees shall
have the same obligation to give notice as set forth in Section 7.1
above, subject to the same loss of indemnity in the event such notice
is not given, and the Agent shall have the same right to participate in
(and, to the extent that it shall wish, to direct) the defense of such
action at its own expense, but such defense shall be conducted by
counsel of recognized standing reasonably satisfactory to the Company.
The Agent agrees to notify the Company's Indemnitees and, at their
request, to provide copies of ail pleadings therein and to permit the
Company's Indemnitees to be observers therein and apprise them of all
the developments therein, all at the Agent's expense.
8. Effectiveness of Agreement. This Agreement shall become
effective upon the date of the execution hereof and shall remain in full force
and effect until the Closing or Closings as the case may be.
9. Conditions of the Agent's Obligations. The Agent's obligations
to act as agent of the Company hereunder and to find purchasers for the
Securities shall be subject to the accuracy in all material respects, as of the
Closing Date, of the representations and warranties on the part of the Company
herein contained, to the fulfillment of or compliance by the Company with all
covenants and conditions hereof, and to the following additional conditions:
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9.l. Counsel to the Agent shall not have objected in good
faith in writing or shall not have failed to give his consent to the
Securities Purchase Agreement (which objection or failure to give
consent shall not have been done unreasonably).
9.2. The Agent shall not have disclosed to the Company that
the Purchase Agreement, or any amendment thereof, contains an untrue
statement of fact, which, in the opinion of counsel to the Agent, is
material, or omits to state a fact, which, in the opinion of such
counsel, is material and is required to be stated therein, or is
necessary to make the statements therein, under the circumstances in
which they were made, not misleading.
9.3. Between the date hereof and the Closing Date, the Company
shall not have sustained any loss on account of fire, explosion, flood,
accident, calamity or any other cause of such character as would
materially adversely affect its business or property considered as an
entire entity, whether or not such loss is covered by insurance.
9.4. Between the date hereof and the Closing Date, there shall
be no litigation instituted or threatened against the Company, and
there shall be no proceeding instituted or threatened against the
Company before or by any federal or state commission, regulatory body
or administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling, decision or finding would
materially adversely affect the business, franchises, license, permits,
operations or financial condition or income of the Company.
9.5. Except as contemplated herein or as set forth in the
Securities Purchase Agreement, during the period subsequent to the most
recent financial statements referred to in the Securities Purchase
Agreement, if any, and prior to the Closing Date, the Company (i) shall
have conducted its business in the usual and ordinary manner as the
same is being conducted as of the date hereof and (ii) except in the
ordinary course of business, the Company shall not have incurred any
liabilities or obligations (direct or contingent) or disposed of any
assets, or entered into any material transaction or suffered or
experienced any substantially adverse change in its condition,
financial or otherwise. At the Closing Date, the equity account of the
Company shall be substantially the same as reflected in the most recent
balance sheet referred to in the Securities Purchase Agreement without
considering the proceeds from the sale of the Securities or any filings
the Company has made under the Act.
9.6. The authorization of the Securities by the Company and
all proceedings and other legal matters incident thereto and to this
Agreement shall be reasonably satisfactory in all respects to counsel
to the Agent, who shall have furnished the Agent on the Closing Date
with such favorable opinion with respect to the sufficiency of all
corporate proceedings and other legal matters relating to this
Agreement as the Agent may reasonably require, and the Company shall
have furnished such counsel such documents as he may have requested to
enable him to pass upon the matters referred to in this subparagraph.
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9.7. The Company shall have furnished to the Agent the
opinion, dated the Closing Date, addressed to the Agent, from counsel
to the Company, as required by the Securities Purchase Agreement.
9.8. The Company shall have furnished to the Agent a
certificate of the Chief Executive Officer and the Chief Financial
Officer of the Company, dated as of the Closing Date, to the effect
that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects at and as of the Closing Date (other than
representations and warranties which by their terms are
specifically limited to a date other than the Closing Date),
and the Company has complied with all the agreements and has
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(ii) the respective signers have each carefully
examined the Purchase Agreement, and any amendments thereto,
and, to the best of their knowledge, all statements contained
in the Purchase Agreement are true and correct, and neither
the Purchase Agreement, nor any amendment thereto, includes
any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein, under the circumstances in which
they were made, not misleading; except as set forth in the
Purchase Agreement, since the respective dates as of which or
the periods for which the information is given in the Purchase
Agreement and prior to the date of such certificate, (a) there
has not been any substantially adverse change, financial and
otherwise, in the affairs of condition in the Company, and (b)
the Company has not incurred any material liabilities, direct
or contingent, or entered into any material transactions,
otherwise than in the ordinary course of business.
10. Termination.
10.1. This Agreement may be terminated by the Agent by written
notice to the Company in the event that the Company shall have failed
or been unable to comply with any of the terms, conditions or
provisions of this Agreement on the part of the Company to be
performed, complied with or fulfilled within the respective times, if
any, herein provided for, unless compliance therewith or performance or
satisfaction thereof shall have been expressly waived by the Agent in
writing.
10.2. This Agreement may be terminated by the Company by
written notice to the Agent in the event that the Agent shall have
failed or been unable to comply with any of the terms, conditions or
provisions of this Agreement on the part of the Agent to be performed,
complied with or fulfilled within the respective times, if any, herein
provided for, unless compliance therewith or performance or
satisfaction thereof shall have been expressly waived by the Company in
writing.
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10.3. Any termination of this Agreement pursuant to this
Section shall be without liability of any character (including, but not
limited to, loss of anticipated profits or consequential damages) on
the part of any party thereto, except that the Company shall remain
obligated to pay the costs and expenses provided to be paid by it
specified in Sections 3.5; and the Company and the Agent shall be
obligated to pay, respectively, all losses, claims, damages or
liabilities, joint or several, under Section 7.1 in the case of the
Company and Section 7.2 in the case of the Agent.
11. Agent's Representations, Warranties, and Covenants. The Agent
represents and warrants to and agrees with the Company that:
11.1. Agent is a corporation duly incorporated and existing
under the laws of the State of Maryland . Agent is registered with the
Securities Exchange Commission and is a member in good standing of the
NASD.
11.2. Agent understands and acknowledges that the Securities
are not being registered under the Act, and that the Offering is to be
conducted pursuant to Regulation D, Section 4(2) of the Act, or
Regulation S, and that the Company is not making the disclosures
required for offerings to purchasers other than accredited investors.
Accordingly, in conducting its activities under this Agreement, Agent
shall offer Securities only to "accredited investors," as defined in
Regulation D.
11.4. All corporate actions by Agent required for the
execution, delivery and performance of this Agreement have been taken.
The execution and delivery of this Agreement by the Agent, the
observance and performance thereof, and the consummation of the
transactions contemplated herein or in the Purchase Agreement do not
and will not constitute a material breach of, or a material default
under, any instrument or agreement by which the Agent is bound, and
does not and will not, to the best of the Agent's knowledge, contravene
any existing law, decree or order applicable to it. This Agreement
constitutes a valid and binding agreement of Agent, enforceable in
accordance with its terms.
11.5. Agent's representations and warranties under this
Section shall be true and correct as of the Closing, and shall survive
the Closing for a period of six months.
12. Notices. Except as otherwise expressly provided in this
Agreement:
12.1. Whenever notice is required by the provisions of this
Agreement to be given to the Company, such notice shall be in writing,
addressed to the Company, at:
If to Company: TCPI, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, XX
Attention: Elliot Block, Ph.D.
Chief Executive Officer
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with a copy to: Xxx X. Xxxxxxx, Esq.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, XX
and
Xxxxx X. Xxxxxxxxxxx, Esq.
Akerman, Senterfitt & Xxxxxx, P.A.
Suntrust International Center, 00xx Xxxxx
Xxx X.X. 0xx Xxxxxx
Xxxxx, XX 00000-0000
12.2. Whenever notice is required by the provisions of this
Agreement to be given to the Agent, such notice shall be given in
writing, addressed to the Agent, at:
If to the Agent: The May Xxxxx Group Inc.
Xxx Xxxxx Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxx
with copy to: Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxxx Xxxxxx Xxxxx #0
Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
12.3. Any notice instructing the Escrow Agent to distribute
monies or Securities held in Escrow must be signed by authorized agents
of both the Company and the Agent in order to be valid.
13. Miscellaneous.
13.1. Benefit. This Agreement is made solely for the benefit
of the Agent and the Company, their respective officers and directors
and any controlling person referred to in Section 15 of the Act and
their respective successors and assigns, and no other person may
acquire or have any right under or by virtue of this Agreement,
including, without limitation, the holders of any Securities. The term
"successor" or the term "successors and assigns" as used in this
Agreement shall not include any purchasers, as such, of any of the
Securities.
13.2. Survival. The respective indemnities, agreements,
representations, warranties, covenants and other statements of the
Company and the Agent, or
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the officers, directors or controlling persons of the Company and the
Agent as set forth in or made pursuant to this Agreement and the
indemnity agreements of the Company and the Agent contained in Section
7 hereof shall survive and remain in full force and effect, regardless
of (i) any investigation made by or on behalf of the Company or the
Agent or any such officer, director or controlling person of the
Company or of the Agent; (ii) delivery of or payment for the
Securities; or (iii) the Closing Date, and any successor of the Company
or the Agent or any controlling person, officer or director thereof, as
the case may be, shall be entitled to the benefits hereof.
13.3. Governing Law. The validity, interpretation, and
construction of this Agreement will be governed by the laws of the
State of New York. The parties further agree that any action between
them shall be heard in New York County, New York, and expressly consent
to the jurisdiction and venue of the Supreme Court of New York County,
New York, and the United States District Court for the Southern
District of New York for the adjudication of any civil action asserted
pursuant to this Paragraph.
13.4. Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be deemed an original and all
of which together will constitute one and the same instrument.
13.5. Confidential Information. All confidential financial or
business information (except publicly available or freely usable
material otherwise obtained from another source) respecting either
party will be used solely by the other party in connection with the
within transactions, be revealed only to employees or contractors of
such other party who are necessary to the conduct of such transactions,
and be otherwise held in strict confidence.
13.6. Public Announcements. Prior to the Closing Date, neither
party hereto will issue any public announcement concerning the within
transactions without the approval of the other party, except as may be
required by applicable securities or other laws.
13.7. Finders. The parties acknowledge that no person has
acted as a finder in connection with the transactions contemplated
herein and each will agree to indemnify the other with respect to any
other claim for a finder's fee in connection with the offering.
13.8. Financial Advisers. The parties acknowledge that the
Company has or may retain financial and other advisers in connection
with this transaction (the "Advisers"), and the Company agrees to
indemnify and hold the Placement Agent harmless for any fees and
expenses of the Advisers.
13.9. Recitals. The recitals to this Agreement are a material
part hereof, and each recital is incorporated into this Agreement by
reference and made a part of this Agreement.
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13.10. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with regard to the subject matter hereof
and supersedes all prior agreements or understandings between the
parties.
13.11 Assignment. This Agreement may not be assigned without
the Company's prior written approval.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the day and year first above written.
ATTEST: COMPANY:
TCPI, INC.
/s/Xxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx,Xx.
------------------ --------------------------
Name: Xxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary Title: Chief Financial Officer
THE MAY XXXXX GROUP INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
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