Exhibit 1.1
MARINER INVESTMENT GROUP
00000 Xx. Xxxx'x Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
February 12, 2003
Commerce Development Corporation, Ltd.
0000 Xxx Xxx Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Re: Placement Agreement
Gentlemen:
Mariner Investment Group ("Mariner") hereby agrees to act as the
placement agent in an attempt to raise proceeds through the sale to investors
(the "Subscribers") of certain equity securities as more particularly described
herein (any such proceeds, the "Capital"). Upon your acceptance hereof, as
indicated below, Commerce Development Corporation, Ltd., a Maryland corporation
(the "Company") agrees that it shall be bound by this Placement Agreement.
Mariner's efforts to raise the Capital are based upon the following terms and
conditions:
1. Engagement. For a period of 180 days from the effective date of the
Prospectus (as defined below), Mariner is hereby granted a non-exclusive right,
as placement agent, to raise the Capital in the manner to be described in the
Prospectus. Notwithstanding anything contained herein to the contrary, Mariner
shall be entitled to select and employ other broker-dealers to sell all or any
portion of the offered shares of the Common Stock of the Company, as defined
below. Further, Mariner shall be entitled to reallow a portion of its commission
to any such participating broker-dealer which raises a portion of the Capital.
For purposes of this Placement Agreement, the term "Prospectus" shall
mean the prospectus included within the Form SB-2 Registration Statement (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the offering of shares of the common stock, par
value $0.001 per share (the "Common Stock") of the Company.
2. The Offering. The Capital shall be raised by Mariner pursuant to an
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offering (the "Offering") involving the public sale of the Common Stock
pursuant to the Prospectus. The Offering shall be conducted in conformity
with the Securities Act and the terms and conditions of the Prospectus.
3. Best Efforts. Mariner will conduct the Offering on a "best efforts"
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basis. Therefore, Mariner does not guarantee that any or all of the Capital
will be raised.
4. Representations and Warranties of the Company.
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(a) At the time the Registration Statement is declared effective by the SEC (the
"Effective Date"), the Registration Statement and the Prospectus and any
supplemental sales material will contain all statements which are required to be
stated therein in accordance with the Securities Act, all Rules and Regulations
of the SEC (the "Regulations") and all state securities laws, will comply with
the provisions of the Securities Act and the Regulations and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Every contract or other document required by the Securities Act or
the Regulations to be filed as an exhibit to the Registration Statement has been
so filed.
(b) There is not pending, threatened, or to the Company's knowledge,
contemplated, any action, suit or proceeding before or by an court or any
federal, state or local governmental authority or agent to which the Company is
or may be a party, or to which its properties or assets is or may be subject, or
which is not described in the Prospectus, and which might result in any material
adverse change in the condition (financial or otherwise), business or prospects
of the Company or might materially and adversely affect any of its properties or
assets.
(c) The financial statements of the Company filed as part of the Registration
Statement and included in the Prospectus fairly present the financial picture of
the Company at the date indicated. Such financial statements comply as to form
in all material respects with the requirements of the Securities Act and the
Regulations and have been prepared in conformity with generally accepted
accounting principles. The accountants who expressed an opinion on the financial
statements filed as part of the Registration Statement with the SEC are, with
respect to the Company, independent public accountants as required by the
Securities Act and the Regulations.
(d) Neither the Company, any affiliate of the Company, or any officer, director,
or beneficial owner of 10 percent or more of any class of equity securities of
the Company:
(i) Has filed a registration statement which is the subject of a currently
effective registration stop order entered pursuant to any state's securities
laws within five years prior to the date of this Placement Agreement;
(ii) Has been convicted within five years prior to the date of this Placement
Agreement of any felony or misdemeanor in connection with the offer, purchase or
sale of any security, or any felony involving fraud or deceit, including, but
not limited to, forgery, embezzlement, obtaining money under false pretenses,
larceny, or conspiracy to defraud;
(iii) Is currently subject to any self-regulatory, federal or state
administrative enforcement complaint, investigation, preliminary or permanent
restraining order or judgment entered by a self regulatory, federal or state
securities administrator within five years prior to the date of this Placement
Agreement, or is subject to any self-regulatory, federal, or state's
administrative enforcement complaint, investigation, preliminary or permanent
restraining order or judgment entered within five years prior to the date of
this Placement Agreement in which fraud or deceit, including, but not limited
to, making untrue statements of material facts and/or omitting to state material
facts, was found;
(iv) Is subject to any state's administrative enforcement order of judgment
which revokes, denies or prohibits utilization by the Company of any exemption
from registration in connection with the offer, purchase or sale of securities;
(v) Is currently subject to any order, judgment or decree of any court of
competent jurisdiction temporarily or preliminarily restraining or enjoining
such party from engaging in or continuing any conduct or practice in connection
with the purchase or sale of any security or involving the making of any false
filing with any jurisdiction, entered within five years prior to the date of
this Placement Agreement;
(vi) There is not nor has there ever been any litigation or governmental
proceeding against the Company involving a charge of fraud or deceit, violation
of state or federal securities laws, or any similar charge. Further, the Company
has not filed any form of bankruptcy proceedings, nor does the Company
contemplate filing any form of bankruptcy proceeding or have any knowledge with
respect to any contemplated or threatened filing of an involuntary bankruptcy
proceeding;
(vii) The net proceeds derived from the sale contemplated herein will be used in
the manner described in the Prospectus subject to the qualifications set forth
therein; and
(viii) Except as described in the Prospectus and excluding payments of salaries
to employees in the ordinary course of business, no current or former
shareholder, director, officer or key employee of the Company or any "Associate"
(as defined in Rule 405 promulgated under the Securities Act) of any such
person, is presently, directly or indirectly through his affiliation with any
other person or entity, a party to any material transaction with the Company
providing for the furnishing of services by or to, or rental of real or personal
property from or to, or otherwise requiring cash payments to or by any such
person. In addition, except as described in the Prospectus, there are no
outstanding loans or advances, other than ordinary travel and expense advances,
or guarantees of indebtedness by the Company to or for the benefit of any
officer, director, shareholder or affiliate (as defined in Rule 405) of the
Company, or any member of the families of such, and there are not material
transactions between or among the Company, or any of its officers, directors,
shareholders or affiliates of a type or character required to be described in
Item 404 of Regulation S-B promulgated under the Securities Act which are not
described in the Prospectus.
(e) The Company is not an investment company as that term is defined in the
Investment Company Act of 1940, as amended.
5. Blue Sky Qualification. The Company will use its best efforts to qualify the
shares of Common Stock offered pursuant to the Prospectus and the Registration
Statement, or to establish an exemption for these shares of Common Stock from
qualification, at or prior to the time the Registration Statement becomes
effective or as soon thereafter as possible, for offering and sale under the
"blue sky" or securities laws of each state in which the Company shall determine
the Offering shall take place and will thereafter maintain such qualification in
effect until the termination date of the Offering. The Company will cause a
"blue sky" survey advising Mariner as to the jurisdictions in which the Common
Stock has been qualified for offering and sale to be prepared and delivered to
Mariner on or before the Effective Date and an amendment to be prepared and
delivered on each date that (a) the Common Stock is qualified in any additional
jurisdiction, or (b) the status of the qualification of the Common Stock in any
jurisdiction is altered in any respect. In each jurisdiction where such
qualification shall be effected, the Company shall file and make such statements
or reports at such time as may be required by the laws of such jurisdiction. The
Company will immediately notify Mariner, and confirm such advice in writing, of
the issuance by the authorities in any such jurisdiction of any stop order or of
the initiation or the threatening of any proceeding for that purpose. If any
such authority shall enter a stop order at any time, the Company will make every
reasonable effort to obtain the lifting of such order at the earliest possible
moment.
6. Delivery of Registration Statement, Prospectus and Amendments thereto. The
Company will deliver to Mariner, without expense to Mariner, at such locations
that Mariner requests, (a) as soon as practicable, three signed copies of the
Registration Statement and all amendments thereto, including exhibits, and (b)
as soon as any Prospectus is filed with the SEC or is transmitted to the SEC for
filing or any supplement to the Prospectus is filed with the SEC or is
transmitted for filing, such number of copies of the Prospectus and supplements
and amendments thereto as Mariner may reasonably request.
7. Sales Material. The Company shall deliver to Mariner in such reasonable
quantities as Mariner requests, all supplemental sales material, designated for
broker-dealer use in connection with the offering of the Common Stock prior to
the use or delivery to third parties of such material. Prior to the use of
delivery to third parties of any supplemental sales material, the Company, at
its expense, will file such materials (a) in any jurisdiction where so required
by law in which an application for qualification is pending, and (b) with the
NASD.
8. Termination.
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(a) Notwithstanding anything contained herein to the contrary, in the event that
a party hereto (i) violates the terms of this Placement Agreement, including,
but not limited to, the representations and warranties contained herein, or the
securities laws of the United States or any state wherein the Common Stock is to
be offered, or (ii) a party furnishes the other party hereto information which
is untrue or misleading or fails to state the facts which make any such
information misleading, the other party may terminate this Placement Agreement.
(b) In addition, Mariner or the Company may terminate this Placement Agreement
at any time.
(c) Furthermore, Mariner or the Company may terminate the Offering in the event
that, among other things, (i) certain specified actions, usually associated with
extremely adverse economic and market conditions, have been taken by the
principal national securities exchanges or by governmental authorities, or (ii)
other events have occurred or are pending or threatened which, in the judgment
of Mariner or the Company, materially impair the investment quality of an
investment in the Company. Any such termination of the Offering by Mariner or
the Company shall also terminate this Placement Agreement.
In the event of any termination as described in this Paragraph 8,
neither party shall have any further liability to the other hereunder, except
that Mariner shall be entitled to any unpaid compensation which is then due
hereunder, or there is any right to indemnification as provided hereinafter.
9. Escrow Account. The parties shall, and by their respective execution of this
Placement Agreement hereby agree to establish an escrow account (the "Escrow
Account") which shall be entitled "Commerce Development Corporation, Ltd. Escrow
Account" for the benefit of the Subscribers to the Offering or such other name
or title as the parties shall mutually agree. Each person desiring to purchase
shares of the Common Stock shall be required to provide a Subscription Agreement
and make payment for the Common Stock as described in the Prospectus. The
Company, upon receipt of a copy of the Subscription Agreement and such other
documents as it may deem necessary or desirable, shall inform such person within
10 days whether it wishes to accept the proposed purchaser, it being understood
that the Company reserves the right to reject any proposed purchaser.
10. Deposits into the Escrow Account. All collected funds of the Subscribers
received by Mariner shall be deposited directly into the Escrow Account. Mariner
shall advise the Company in writing at the time of each deposit into the Escrow
Account of the name and address of each Subscriber along with the number of
shares of the Common Stock subscribed for by each Subscriber, and the cash
amount tendered by each Subscriber. All amounts deposited into the Escrow
Account shall be held in the Escrow Account pursuant to the terms of the Escrow
Agreement filed as an exhibit to the Registration Statement and shall be in
compliance with Rule 15c2-4 of the Securities Exchange Act of 1934, as amended.
11. Tax Matters. Mariner shall provide to the Company with respect to each
Subscriber a taxpayer identification number documented by an appropriate Form
W-8 or Form W-9 or certificate of foreign taxpayer exemption prior to any
deposit for such Subscriber into the Escrow Account.
12. Disbursement from the Escrow Account. During the term of the Offering and
until its termination as herein provided, at the expiration of five days after
the sale of shares of the Common Stock for a sum totaling $25,000 by Mariner and
the deposit of the proceeds from the sale thereof into the Escrow Account,
together with information as to the names and addresses of the Subscribers and
the amount subscribed for by each such Subscriber, Mariner shall disburse to the
Company the proceeds of such sales, less the amount of any Sales Commission, as
defined below, with respect to proceeds being disbursed. Provided, however, upon
the termination of the Offering, if there shall be less than $25,000 in the
Escrow Account, Mariner shall disburse to the Company all of the proceeds then
on deposit in the Escrow Account, less the amount of any Sales Commission with
respect to proceeds being disbursed. Upon the happening of (a) the complete
disbursement from the Escrow Account by Mariner to the Company of the proceeds
from the Offering in accordance with the distribution terms hereinabove set
forth, or (b) the Offering is terminated, and the repayment to the Subscribers
of their subscriptions, Mariner shall be relieved of all liabilities in
connection with the Escrow Account and this Placement Agreement shall terminate.
13. Compensation. As compensation for its services provided under this Placement
Agreement, Mariner is entitled to receive a sales commission equal to 2.5
percent of the Capital raised by Mariner and all other broker-dealers selected
by Mariner pursuant to the terms of this Placement Agreement, if any (the "Sales
Commission").
14. Indemnification. Each of the parties hereto shall indemnify and hold the
other party harmless against any losses, claims, damages or liabilities to which
the party requesting indemnification (each an "Indemnified Party") may become
subject under the Securities Act or otherwise including, without limitation, any
and all expenses whatsoever reasonably incurred in investigating, preparing, or
defending against the same (all such losses, claims, damages, expenses and other
liabilities are collectively referred to herein as the "Damages") by reason of
(A) the breach of any representation, warranty or covenant contained herein by
the party from whom indemnification is requested (each an "Indemnifying Party"),
or (B) the making of any untrue statement of a material fact (or omission
thereof) in the Prospectus resulting from information furnished by the
Indemnifying Party. Provided, however, the Indemnified Party shall not be
entitled to indemnification for Damages resulting from an untrue statement of a
material fact (or omission thereof) in the Prospectus if (Y) the Indemnifying
Party furnished the Indemnified Party with additional information or an
amendment or supplement to the Prospectus which corrected such untrue statement
or omission prior to the occurrence of the alleged Damages, and (Z) the
Indemnified Party failed to send or provide such information or a copy of such
corrective amendment or supplement, as applicable, to the person asserting such
Damages within the appropriate time frame required by the Securities Act or any
other applicable law.
(a) The Company shall indemnify and hold Mariner and each person, if any, who
controls Mariner within the meaning of the Securities Act, together with all its
officers, directors, employees, or agents harmless from and against any and all
Damages which arise out of, or are based upon (i) the Company's inclusion of any
untrue statement or alleged untrue statement of a material fact in the
Prospectus, including any amendments or supplements thereto, or any application
or other document filed in any state or other jurisdiction in order to qualify
the Offering under the Blue Sky or securities laws of such state or jurisdiction
or to secure an exemption therefrom (all such actions, a "Blue Sky
Application"), (ii) the Company's omission or alleged omission of a material
fact (A) required to be included in any such document described in clause (i),
or (B) necessary to prevent the statements contained in any such document from
being misleading in light of the circumstances under which such statements were
made, (iii) the taking of any actions, direct or indirect, in connection with
the offering and sale of the Common Stock by the Company or any of its officers
or directors (excluding Mariner and its employees and affiliates) in violation
of the Securities Act or any other applicable federal or state securities laws
or regulations, or (iv) the breach of any representation, warranty or covenant
contained in the Placement Agreement.
(b) Mariner shall indemnify and hold harmless the Company and each of its
affiliates against any Damages which arise out of, or are based upon (i) the
inclusion of any untrue statement or alleged untrue statement of a material fact
in the Prospectus, a Blue Sky Application or any other document referred to in
clause (i) of Paragraph 15(a) which is made by, or resulted from information
provided by, Mariner, (ii) Mariner's misuse or unauthorized use in any
jurisdiction of any supplemental sales literature (whether designed solely for
broker-dealer use or otherwise), or (iii) Mariner's delivery, distribution or
furnishing, either orally or in writing, of any information related to the
Company or the Offering which is not contained in, or is materially inconsistent
with, the information contained in the Prospectus or any supplemental sales
literature.
(c) Upon receipt of notice of the commencement of any action for which
indemnification may be sought under this Paragraph 15, the Indemnified Party
shall promptly notify the Indemnifying Party of the commencement of such action
and the Indemnified Party's desire to seek indemnification hereunder; provided,
however, failure to so notify the Indemnifying Party shall not relieve it from
any liability which it may have to the Indemnified Party otherwise than under
this Placement Agreement. The Indemnifying Party shall be entitled to
participate in, and to the extent desired, to jointly participate with any other
Indemnifying Party, in the defense of such action with the Indemnified Party.
The Indemnifying Party shall pay all legal fees and expenses of the Indemnified
Party in the defense of such claims and actions. Notwithstanding anything
contained herein to the contrary, an Indemnified Party may, without the prior
consent of the Indemnifying Party, fully settle or compromise any action brought
against an Indemnified Party which is covered by this Paragraph 15.
(d) The provisions of this Paragraph 15 shall remain in full force and effect
after the termination of this Placement Agreement.
15. Effective Date. This Placement Agreement shall become effective
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on the date it is executed by a duly authorized representative of the Company.
16. Further Acts. The parties understand that this Placement Agreement is not
complete in every detail with respect to the Offering, and that it may become
necessary to amend this Placement Agreement from time to time in order to carry
out the intent hereof. However, each party will proceed in good faith to carry
out the intent and terms of this Placement Agreement. Further, in a timely and
complete manner, the parties shall provide each other with all information
needed to complete the preparation of the Prospectus and all other documents
related thereto, and to supplement such information during the course of the
Offering or thereafter as required by applicable law. In that regard, the
Company undertakes and agrees to provide Mariner with such information and data
as may be reasonably required for Mariner to comply with its statutory and
regulatory obligations in connection with the Offering, the application of
proceeds and the operations of the Company.
17. Assignment. Except for Mariner's right to select and employ
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additional broker-dealers to sell all or any portion of the Common Stock
to be sold in the Offering, this Placement Agreement and the rights and
obligations of the parties hereunder may not be assigned.
18. Mediation and Arbitration. All disputes arising or related to this Placement
Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Houston, Texas. If
such mediation fails, then any such dispute shall be resolved by binding
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association in effect at the time the arbitration proceeding commences, except
that (a) Texas law and the Federal Arbitration Act must govern construction and
effect, (b) the locale of any arbitration must be in Houston, Texas, and (c)
with the award, the arbitrator must provide written findings of fact and
conclusions of law. Either party to this Placement Agreement may seek from a
court of competent jurisdiction any provisional remedy that may be necessary to
protect its rights or assets pending the selection of the arbitrator or the
arbitrator's determination of the merits of the controversy. The exercise of
such arbitration rights by a party will not preclude the exercise of any
self-help remedies (including without limitation, setoff rights) or the exercise
of any non-judicial foreclosure rights. An arbitration award may be entered in
any court having jurisdiction.
19. Attorneys' fees. In the event that it should become necessary for any party
entitled hereunder to bring suit against the other party to the Placement
Agreement for enforcement of the covenants contained herein, the parties hereby
covenant and agree that the party who is found to be in violation of this
Placement Agreement shall also be liable to the other party for all reasonable
attorneys' fees and costs of court incurred by such other party.
20. Benefit. The terms and provisions of this Placement Agreement
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shall be binding upon, inure to the benefit of and be enforceable by, the
parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
21. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and delivered personally or sent by registered or certified
United States mail, return receipt requested with postage prepaid, or by
telecopy or electronic mail (e-mail), if to Mariner, addressed to Xx. Xxx X.
Xxxxx, Xx., at 00000 Xx. Xxxx'x Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
telecopier (000) 000-0000, and e-mail xxxxxxxx@xxxxxxxxxxxxxxxxx.xxx; and if to
the Company, addressed to Xx. Xxxxxx X. Xxxxxx at 0000 Xxx Xxx Xxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, telecopier (000) 000-0000, and e-mail at
xxxx@xxxxx.xxx. Either party may change its address for purposes of receiving
notices pursuant to this Placement Agreement upon 10 days written notice.
22. Construction. Words of any gender used in this Placement Agreement shall be
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Placement Agreement shall be
understood and construed to apply whether the party referred to is an
individual, partnership, joint venture, corporation or an individual or
individuals doing business under a firm or trade name, and the masculine,
feminine and neuter pronouns shall each include the other and may be used
interchangeably with the same meaning.
23. Waiver. No course of dealing on the part of any party hereto or its agents,
or any failure or delay by any such party with respect to exercising any right,
power or privilege of such party under this Placement Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
24. Cumulative Rights. The rights and remedies contained in this Placement
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Agreement shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
25. Invalidity. In the event any one or more of the provisions contained in this
Placement Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Placement Agreement or any such
other instrument.
26. Headings. The headings used in this Placement Agreement are for
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convenience and reference only and in no way define, limit, amplify or
describe the scope or intent of this Placement Agreement, and do not effect or
constitute a part of this Placement Agreement.
27. Excusable Delay. The parties shall not be obligated to perform and shall not
be deemed to be in default hereunder, if the performance of a non-monetary
obligation required hereunder is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
28. No Third-Party Beneficiary. Any agreement to pay an amount and any
assumption of liability contained in this Placement Agreement, express or
implied, shall be only for the benefit of the undersigned parties and their
respective successors and assigns (as herein expressly permitted), and such
agreements and assumptions shall not inure to the benefit of the obligees or any
other party, whomsoever, it being the intention of the parties hereto that no
one shall be or be deemed to be a third-party beneficiary of this Placement
Agreement.
29. Multiple counterparts. This Placement Agreement may be executed in
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one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
30. Governing law; Jurisdiction. This Placement Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court for
Xxxxxx County, Texas, as well as of the District Courts of the State of Texas in
Xxxxxx County, Texas over any suit, action or proceeding arising out of or
relating to this Placement Agreement. Each party hereby irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such mediation, arbitration, suit, action
or proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
31. Entire Agreement. This instrument contains the entire understanding
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of the parties with respect to the subject matter hereof, and may not be
changed orally, but only by an instrument in writing signed by each of the
parties hereto.
32. Representations, Warranties and Agreements to Survive. All indemnity
agreements set forth in this Placement Agreement, as well as all
representations, warranties, covenants and other agreements set forth in this
Placement Agreement shall remain operative and in full force and effect at the
termination of this Placement Agreement, and any successor of the parties shall
be entitled to the benefit of the respective representations, warranties and
agreements made herein.
33. Expenses of the Offering and Placement. The Company will pay all costs and
expenses incident to the performance of its obligations under this Placement
Agreement, including all costs and expenses incident to (a) the preparation,
printing, filing and delivery of the Registration Statement and the Prospectus,
including the cost of all copies thereof and of any preliminary prospectus and
of the Prospectus and any amendment thereof or supplement thereto, including
such quantities of each such document as Mariner reasonably requests, (b) the
Escrow Agreement and all amendments thereto, other solicitation material and
related documents and the filing or recording of such documents necessary to
comply with the laws of the jurisdictions in which the Company and Mariner
determine to effect the placement of the Common Stock, as well as any federal,
NASD or exchange filings; (c) the delivery of the shares representing the Common
Stock, including payment of any applicable transfer tax; (d) any escrow
arrangement in connection with the Offering and sale of the Common Stock,
including any compensation and reimbursement to the Escrow Agent; (e) the
qualification of the Common Stock to be offered under, and continued compliance
with "blue sky" or securities laws of the jurisdictions contemplated by the
Company and Mariner herein to effect the sale of the Common Stock including
filing fees and the fees and disbursements of counsel incurred in connection
therewith and the cost of printing of the "blue sky" survey and supplements
thereto; (f) the filing fees payable to the SEC and to the NASD; (g) printing
and distribution expenses; and (h) the fees of counsel and accountants for the
Company; and (i) fees and travel incident to the due diligence on the Company
and it's control persons.
If the foregoing meets your approval and you agree to such terms and
conditions, please sign and date this letter in the space provided below. Please
return the originally executed letter to me as soon as possible and retain a
copy thereof for your files.
Very truly yours,
MARINER INVESTMENT GROUP
By /s/ Xxx X. Xxxxx, Xx.
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Xxx X. Xxxxx, Xx., President
This Placement Agreement is accepted and
Agreed to this 12 day of February, 2003
COMMERCE DEVELOPMENT CORPORATION, LTD.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
