Exhibit 10.54
TITAN GENERAL HOLDINGS, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: July 29, 2003.
The undersigned, Titan General Holdings, Inc., a Utah corporation (the
"COMPANY"), hereby agrees with Oftring & Company, Inc (the "PLACEMENTAGENT") and
Dutchess Private Equities Fund, L.P., a Delaware Limited Partnership (the
"INVESTOR") as follows:
1. OFFERING. The Company hereby engages the Placement Agent to act as its
exclusive placement agent in connection with the Investment Agreement
dated the date hereof (the "INVESTMENT AGREEMENT") pursuant to which
the Company shall issue and sell to the Investor, from time to time,
and the Investor shall purchase from the Company (the "OFFERING") up to
One Million Five Hundred Thousand Dollars ($1,500,000) of the Company's
Class A Voting Common Stock (the "COMMITMENT AMOUNT"), par value $0.001
per share (the "COMMON STOCK"), at price per share equal to the
Purchase Price, as that term is defined in the Investment Agreement.
Pursuant to the terms hereof, the Placement Agent shall render
consulting services to the Company with respect to the Investment
Agreement and shall be available for consultation in connection with
the advances to be requested by the Company pursuant to the Investment
Agreement. All capitalized terms used herein and not otherwise defined
herein shall have the same meaning ascribed to them as in the
Investment Agreement. The Investor will be granted certain registration
rights with respect to the Common Stock as more fully set forth in the
Registration Rights Agreement between the Company and the Investor
dated the date hereof (the "REGISTRATION RIGHTS AGREEMENT"). The
documents to be executed and delivered in connection with the Offering,
including, but not limited, to this Agreement, the Investment
Agreement, and the Registration Rights Agreement, are referred to
sometimes hereinafter collectively as the "OFFERING MATERIALS." The
Company's Common Stock is sometimes referred to hereinafter as the
"SECURITIES." The Placement Agent shall not be obligated to sell any
Securities and this Offering by the Placement Agent shall be solely on
a "best efforts basis." The Placement Agent shall receive 1% (one
percent) of each Put as a fee.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT AGENT. A.
The Placement Agent represents, warrants and covenants as follows:
(i) The Placement Agent has the necessary power to enter into this
Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Placement Agent of this
Agreement and the consummation of the transactions contemplated herein
will not result in any violation of, or be in conflict with, or
constitute a default under, any agreement or instrument to which the
Placement Agent is a party or by which the Placement Agent or its
properties are bound, or any judgment, decree, order or, to the
Placement Agent's knowledge, any statute, rule or regulation applicable
to the Placement Agent. This Agreement when executed and delivered by
the Placement Agent, will constitute the legal, valid and binding
obligations of the Placement Agent, enforceable in accordance with
their respective terms, except to the extent that (a) the
enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to
time in effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject
to general principles of equity, or (c) the indemnification provisions
hereof or thereof may be held to be in violation of public policy.
(iii) Upon receipt and execution of this Agreement the Placement Agent
will promptly forward copies of this Agreement to the Company or its
counsel and the Investor or its counsel.
(iv) The Placement Agent will not take any action that it reasonably
believes would cause the Offering to violate the provisions of the
Securities Act of 1933, as amended (the "1933 ACT"), the Securities
Exchange Act of 1934 (the "1934 ACT"), the respective rules and
regulations promulgated there under (the "RULES AND REGULATIONS") or
applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all reasonable efforts to determine
(a) whether the Investor is an Accredited Investor and (b) that any
information furnished by the Investor is true and accurate. The
Placement Agent shall have no obligation to insure that (x) any check,
note, draft or other means of payment for the Common Stock will be
honored, paid or enforceable against the Investor in accordance with
its terms, or (y) subject to the performance of the Placement Agent's
obligations and the accuracy of the Placement Agent's representations
and warranties hereunder, (1) the Offering is exempt from the
registration requirements of the 1933 Act or any applicable state "Blue
Sky" law or (2) the Investor is an Accredited Investor.
(vi) The Placement Agent is a member of the National Association of
Securities Dealers, Inc., and is a broker-dealer registered as such
under the 1934 Act and under the securities laws of the states in which
the Securities will be offered or sold by the Placement Agent unless an
exemption for such state registration is available to the Placement
Agent. The Placement Agent is in compliance with all material rules and
regulations applicable to the Placement Agent generally and applicable
to the Placement Agent's participation in the Offering.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
A. The Company represents and warrants as follows:
(i) The execution, delivery and performance of each of this Agreement,
the Investment Agreement and the Registration Rights Agreement has been
or will be duly and validly authorized by the Company and is, or with
respect to this Agreement, the Investment Agreement and the
Registration Rights Agreement will be, a valid and binding agreement of
the Company, enforceable in accordance with its respective terms,
except to the extent that (a) the enforceability hereof or thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect and
affecting the rights of creditors generally, (b) the enforceability
hereof or thereof is subject to general principles of equity or (c) the
indemnification provisions hereof or thereof may be held to be in
violation of public policy. The Securities to be issued pursuant to the
transactions contemplated by this Agreement and the Investment Agreement
have been duly authorized and, when issued and paid for in accordance
with (x) this Agreement, the Equity Line of Agreement and the
certificates/instruments representing such Securities, (y) will be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms, except to the extent that (1) the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect and affecting the
rights of creditors generally, and (2) the enforceability thereof is
subject to general principles of equity. All corporate action required to
be taken for the authorization, issuance and sale of the Securities has
been duly and validly taken by the Company.
(ii) The Company has a duly authorized, issued and outstanding
capitalization as set forth herein and in the Investment Agreement. The
Company is not a party to or bound by any instrument, agreement or other
arrangement providing for it to issue any capital stock, rights,
warrants, options or other securities, except for this Agreement, the
agreements described herein and as described in the Investment Agreement,
dated the date hereof and the agreements described therein. All issued
and outstanding securities of the Company, have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof
have no rights of rescission or preemptive rights with respect thereto
and are not subject to personal liability solely by reason of being
security holders; and none of such securities were issued in violation of
the preemptive rights of any holders of any security of the Company. As
of the date hereof, the authorized capital stock of the Company consists
of 950,000,000 shares of Class A Voting Common Stock, par value $0.001
per share of which 14,343,751 shares of Common Stock are issued and
outstanding.
(iii) The Common Stock to be issued in accordance with this Agreement and
the Investment Agreement has been duly authorized and when issued and
paid for in accordance with this Agreement, the Investment Agreement and
the certificates/instruments representing such Common Stock, will be
validly issued, fully-paid and non-assessable; the holders thereof will
not be subject to personal liability solely by reason of being such
holders; such Securities are not and will not be subject to the
preemptive rights of any holder of any security of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
A. The Investor represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter into this Agreement and
to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Investor of this Agreement and the
consummation of the transactions contemplated herein will not result in
any violation of, or be in conflict with, or constitute a default under,
any agreement or instrument to which the Investor is a party or by which
the Investor or its properties are bound, or any judgment, decree, order
or, to the Investor's knowledge, any statute, rule or regulation
applicable to the Investor. This Agreement when executed and delivered by
the Investor, will constitute the legal, valid and binding obligations of
the Investor, enforceable in accordance with their respective terms,
except to the extent that (a) the enforceability hereof or thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect and affecting the rights of creditors
generally, (b) the enforceability hereof or thereof is subject to general
principles of equity, or (c) the indemnification provisions hereof or
thereof may be held to be in violation of public policy.
(iii) The Investor will promptly forward copies of any and all due
diligence questionnaires compiled by the Investor to the Placement Agent.
5. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY.
The Company covenants and agrees at its expense and without any expense
to the Placement Agent as follows:
A. To advise the Placement Agent of any material adverse change in the
Company's financial condition, prospects or business or of any
development materially affecting the Company or rendering untrue or
misleading any material statement in the Offering Materials occurring at
any time as soon as the Company is either informed or becomes aware
thereof.
B. To use its commercially reasonable efforts to cause the Common Stock
issuable in connection with the Equity Line of Credit to be qualified or
registered for sale on terms consistent with those stated in the
Registration Rights Agreement and under the securities laws of such
jurisdictions as the Placement Agent and the Investor shall reasonably
request. Qualification, registration and exemption charges and fees shall
be at the sole cost and expense of the Company.
C. Upon written request, to provide and continue to provide the Placement
Agent and the Investor copies of all quarterly financial statements and
audited annual financial statements prepared by or on behalf of the
Company, other reports prepared by or on behalf of the Company for public
disclosure and all documents delivered to the Company's stockholders.
D. To deliver, during the registration period of the Equity Line Credit
Agreement, to the Placement Agent upon the Placement Agent's request,
(i) within forty five (45) days, a statement of its income for each such
quarterly period, and its balance sheet and a statement of changes in
stockholders' equity as of the end of such quarterly period, all in
reasonable detail, certified by its principal financial or accounting
officer;
(ii) within ninety (90) days after the close of each fiscal year, its
balance sheet as of the close of such fiscal year, together with a
statement of income, a statement of changes in stockholders' equity and a
statement of cash flow for such fiscal year, such balance sheet,
statement of income, statement of changes in stockholders' equity and
statement of cash flow to be in reasonable detail and accompanied by a
copy of the certificate or report thereon of independent auditors if
audited financial statements are prepared; and
(iii) a copy of all documents, reports and information furnished to its
stockholders at the time that such documents, reports and information are
furnished to its stockholders.
E. To comply with the terms of the Offering Materials.
F. To ensure that any transactions between or among the Company, or any of
its officers, directors and affiliates be on terms and conditions that
are no less favorable to the Company, than the terms and conditions that
would be available in an "arm's length" transaction with an independent
third party.
6. INDEMNIFICATION.
A. The Company hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent and each person controlling, controlled by or
under common control with the Placement Agent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or the
SEC's Rules and Regulations promulgated there under (the "Rules and
Regulations"), harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Placement Agent or such indemnified
person of the Placement Agent may become subject under the 1933 Act, the
1934 Act, the Rules and Regulations, or any other federal or state law or
regulation, common law or otherwise, arising out of or based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in (a) Section 4 of this Agreement, (b) the Offering Materials (except
those written statements relating to the Placement Agent given by an
indemnified person for inclusion therein), (c) any application or other
document or written communication executed by the Company or based upon
written information furnished by the Company filed in any jurisdiction in
order to qualify the Common Stock under the securities laws thereof, or
any state securities commission or agency; (ii) the omission or alleged
omission from documents described in clauses (a), (b) or (c) above of a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or (iii) the breach of any
representation, warranty, covenant or agreement made by the Company in
this Agreement. The Company further agrees that upon demand by an
indemnified person, at any time or from time to time, it will promptly
reimburse such indemnified person for any loss, claim, damage, liability,
cost or expense actually and reasonably paid by the indemnified person as
to which the Company has indemnified such person pursuant hereto.
Notwithstanding the foregoing provisions of this Paragraph 6(A), any such
payment or reimbursement by the Company of fees, expenses or
disbursements incurred by an indemnified person in any proceeding in
which a final judgment by a court of competent jurisdiction (after all
appeals or the expiration of time to appeal) is entered against the
Placement Agent or such indemnified person based upon specific finding of
fact that the Placement Agent or such indemnified person's gross
negligence or willful misfeasance will be promptly repaid to the Company.
B. The Placement Agent hereby agrees that it will indemnify and hold the
Company and each officer, director, shareholder, employee or
representative of the Company, and each person controlling, controlled by
or under common control with the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Company or such indemnified person of
the Company may become subject under the 1933 Act, the 1934 Act, the
Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) the conduct of
the Placement Agent or its officers, employees or representatives in its
acting as Placement Agent for the Offering or (ii) the material breach of
any representation, warranty, covenant or agreement made by the Placement
Agent in this Agreement (iii) any false or misleading information
provided to the Company by one of the Placement Agent's indemnified
persons.
C. The Investor hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent, and each person controlling, controlled by or
under common control with the Placement Agent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Placement Agent or such indemnified
person of the Placement Agent may become subject under the 1933 Act, the
1934 Act, the Rules and Regulations, or any other federal or state law or
regulation, common law or otherwise, arising out of or based upon (i) the
conduct of the Investor or its officers, employees or representatives in
its acting as the Investor for the Offering or (ii) the material breach
of any representation, warranty, covenant or agreement made by the
Investor in the Offering Materials (iii) any false or misleading
information provided to the Placement Agent by one of the Investor's
indemnified persons.
D. The Placement Agent hereby agrees that it will indemnify and hold the
Investor and each officer, director, shareholder, employee or
representative of the Investor, and each person controlling, controlled
by or under common control with the Investor within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Investor or such indemnified person of
the Investor may become subject under the 1933 Act, the 1934 Act, the
Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) the conduct of
the Placement Agent or its officers, employees or representatives in its
acting as the Placement Agent for the Offering or (ii) the material
breach of any representation, warranty, covenant or agreement made by the
Placement Agent in this Agreement (iii) any false or misleading
information provided to the Investor by one of the Placement Agent's
indemnified persons.
E. Promptly after receipt by an indemnified party of notice of commencement
of any action covered by Section 6(A), (B), (C) or (D), the party to be
indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified
party to so notify the indemnifying party shall not relieve the
indemnifying party of its obligation to indemnify any other indemnified
party that has given such notice and shall not relieve the indemnifying
party of any liability outside of this indemnification if not materially
prejudiced thereby. In the event that any action is brought against the
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent it may desire, to assume and control the
defense thereof with counsel chosen by it which is reasonably acceptable
to the indemnified party. After notice from the indemnifying party to
such indemnified party of its election to so assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
such Section 6(A), (B), (C), or (D) for any legal or other expenses
subsequently incurred by such
indemnified party in connection with the defense thereof, but the
indemnified party may, at its own expense, participate in such defense by
counsel chosen by it, without, however, impairing the indemnifying
party's control of the defense. Subject to the proviso of this sentence
and notwithstanding any other statement to the contrary contained herein,
the indemnified party or parties shall have the right to choose its or
their own counsel and control the defense of any action, all at the
expense of the indemnifying party if, (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action at the expense of the
indemnifying party, or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to such indemnified party to
have charge of the defense of such action within a reasonable time after
notice of commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses of one additional counsel shall be
borne by the indemnifying party; provided, however, that the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstance, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
at any time for all such indemnified parties. No settlement of any action
or proceeding against an indemnified party shall be made without the
consent of the indemnifying party.
F. In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in Section 6(A) or 7(B) is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the
Placement Agent shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with the investigation or defense of same) which the other may
incur in such proportion so that the Placement Agent shall be responsible
for such percent of the aggregate of such losses, claims, damages and
liabilities as shall equal the percentage of the gross proceeds paid to
the Placement Agent and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(F), any person
controlling, controlled by or under common control with the Placement
Agent, or any partner, director, officer, employee, representative or any
agent of any thereof, shall have the same rights to contribution as the
Placement Agent and each person controlling, controlled by or under
common control with the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and each officer of the Company
and each director of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against the other party under this Section 6(D),
notify such party from whom contribution may be sought, but the omission
to so notify such party shall not relieve the party from whom
contribution may be sought from any obligation they may have hereunder or
otherwise if the party from whom contribution may be sought is not
materially prejudiced thereby. The indemnity and contribution agreements
contained in this Section 6 shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any
indemnified person or any termination of this Agreement.
7. PAYMENT OF EXPENSES. The Company hereby agrees to bear all of the
expenses in connection with the Offering, including, but not limited to
the following: filing fees, printing and duplicating costs,
advertisements, postage and mailing expenses with respect to the
transmission of Offering Materials, registrar and transfer agent fees,
and expenses, fees of the Company's counsel and accountants, issue and
transfer taxes, if any.
8. CONDITIONS OF CLOSING. The Closing shall be held at the offices of the
Investor or its counsel. The obligations of the Placement Agent hereunder
shall be subject to the continuing accuracy of the representations and
warranties of the Company herein as of the date hereof and as of the Date
of Closing (the "Closing Date") with respect to the Company as if it had
been made on and as of such Closing Date; the accuracy on and as of the
Closing Date of the statements of the officers of the Company made
pursuant to the provisions hereof; and the performance by the Company on
and as of the Closing Date of its covenants and obligations hereunder and
to the following further conditions:
A. Upon the effectiveness of a registration statement covering the
Investment Agreement, the Placement Agent shall receive the opinion of
Counsel to the Company, dated as of the date thereof, which opinion shall
be in form and substance reasonably satisfactory to the Investor, their
counsel and the Placement Agent.
B. At or prior to the Closing, the Placement Agent shall have been furnished
such documents, certificates and opinions as it may reasonably require
for the purpose of enabling them to review or pass upon the matters
referred to in this Agreement and the Offering Materials, or in order to
evidence the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained.
C. At and prior to the Closing, (i) there shall have been no material
adverse change nor development involving a prospective change in the
condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such
condition is set forth in the Offering Materials; (ii) there shall have
been no transaction, not in the ordinary course of business except the
transactions pursuant to the Securities Purchase Agreement entered into
by the Company which has not been disclosed in the Offering Materials or
to the Placement Agent in writing; (iii) except as set forth in the
Offering Materials, the Company shall not be in default under any
provision of any instrument relating to any outstanding indebtedness for
which a waiver or extension has not been otherwise received; (iv) except
as set forth in the Offering Materials, the Company shall not have issued
any securities (other than those to be issued as provided in the Offering
Materials) or declared or paid any dividend or made any distribution of
its capital stock of any class and there shall not have been any change
in the indebtedness (long or short term) or liabilities or obligations of
the Company (contingent or otherwise) and trade payable debt; (v) no
material amount of the assets of the Company shall have been pledged or
mortgaged, except as indicated in the Offering Materials; and (v) no
action, suit or proceeding, at law or in equity, against the Company or
affecting any of its properties or businesses shall be pending or
threatened before or by any court or federal or state commission, board
or other administrative agency, domestic or foreign, wherein an
unfavorable decision, ruling or finding could materially adversely affect
the businesses, prospects or financial condition or income of the
Company, except as set forth in the Offering Materials. D. At Closing,
the Placement Agent shall receive a certificate of the Company signed by
an executive officer and chief financial officer, dated as of the
applicable Closing, to the effect that the conditions set forth in
subparagraph (C) above
have been satisfied and that, as of the applicable closing, the
representations and warranties of the Company set forth herein are true
and correct.
10. TERMINATION. This Agreement shall be co-terminus with, and terminate upon
the same terms and conditions as those set forth in, the Investment
Agreement. The rights of the Investor and the obligations of the Company
under the Registration Rights Agreement, and the rights of the Placement
Agent and the obligations of the Company shall survive the termination of
this Agreement unabridged for a period of twenty-four (364) months after
the Closing Date.
11. MISCELLANEOUS. A. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
which shall be deemed to be one and the same instrument. B. Any notice
required or permitted to be given hereunder shall be given in writing and
shall be deemed effective when deposited in the United States mail,
postage prepaid, or when received if personally delivered or faxed (upon
confirmation of receipt received by the sending party), addressed as
follows:
If to Placement Agent, to:
Oftring & Company Inc..
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Company, to:
Titan General Holdings, Inc.
Attention: Xxxxxx Xxxxxxx
Acting CFO
Tel: (000) 000-0000
Fax: (978)
With a copy to:
Xxxxxx Xxxxx
Xxxxxxx and Xxxxx
If to the Investor:
Dutchess Private Equities fund, LP
000 Xxxxxx Xx.
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address of which written notice is given to the others.
C. This Agreement shall be governed by and construed in all respects under
the laws of the State of Delaware, without reference to its conflict of
laws rules or principles. Any suit, action, proceeding or litigation
arising out of or relating to this Agreement shall be brought and
prosecuted in such federal or state court or courts located within the
Commonwealth of Massachusetts as provided by law. The parties hereby
irrevocably and unconditionally consent to the jurisdiction of each such
court or courts located within the Commonwealth of Massachusetts and to
service of process by registered or certified mail, return receipt
requested, or by any other manner provided by applicable law, and hereby
irrevocably and unconditionally waive any right to claim that any suit,
action, proceeding or litigation so commenced has been commenced in an
inconvenient forum.
D. This Agreement and the other agreements referenced herein contain the
entire understanding between the parties hereto and may not be modified
or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
E. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
COMPANY:
Titan General Holdings, Inc.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
PLACEMENT AGENT:
Oftring & Company, Inc.
By: /s/ Xxxxxx X Xxxxxxx
------------------------------------
Name: Xxxxxx X Xxxxxxx
Title: President
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A Managing Member
