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EXHIBIT 10.54
PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("AGREEMENT"), made as of the 25th day of March, 1999,
by and between HomeCom Communications, Inc., a Delaware corporation ("COMPANY"),
and X.X. Xxxxxx & Company, L.L.C., a Georgia limited liability corporation (the
"AGENT").
WITNESSETH:
WHEREAS, the Company proposes to issue and sell to certain investors
(the "INVESTORS") 125 shares of its Series B Convertible Preferred Stock
("SERIES B PREFERRED STOCK") resulting in gross proceeds up to $2,500,000 (the
Series B Preferred Stock to be sold, hereinafter referred to as the
"SECURITIES") (the "OFFERING") not involving a public offering without
registration under the Securities Act of 1933, as amended (the "'33ACT"),
pursuant to exemptions from the registration requirements of the Act under
Regulation D promulgated under the Act ("REGULATION D"), as described below; and
WHEREAS, the Agent has offered to assist the Company in placing the
Securities on a "best efforts basis", and the Company desires to secure the
services of the Agent on the terms and conditions hereinafter set forth;
AGREEMENT
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, to sell up to $2,500,000 stated value of
securities (the "MAXIMUM SECURITIES") on a "best efforts basis," resulting in
gross proceeds to the Company of up to $2,500,000. The Offering shall be made in
two tranches (the "TRANCHES"). The Agent, subject to the terms and conditions
herein set forth, accepts such appointment and agrees to use its best efforts to
find purchasers for the Securities. The parties expressly acknowledge that the
Agent has not rendered financial advice to the Company in connection with the
Offering, but has only sought out qualified purchasers for the Offering on a
best efforts basis.
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 Offering Documents. The Company and the Investors have prepared a
Securities Purchase Agreement, Registration Rights Agreement, and Certificate of
Designations, Preferences and Rights and certain exhibits thereto for the Series
B Preferred Stock in connection with the sale of the Securities, which documents
have been or will be sent to the Investors. As used in this Agreement, the term
"OFFERING DOCUMENTS" refers to and means the Securities Purchase Agreement,
Registration Rights Agreement, and Certificate of Designations, Preferences, and
Rights and certain exhibits thereto, for the Series B Preferred Stock and all
amendments, exhibits and supplements thereto, together with any other documents
which are provided to the Agent by, or approved for Agent's use by, the Company
for the purpose of this Offering.
2.2 Provision of Offering Documents. The Company shall deliver to the
Agent, without charge, as many copies of the Offering Documents as the Agent may
reasonably require for the purposes contemplated by this Agreement. The Company
authorizes the Agent, in connection with the Offering of the Securities, to use
the Offering Documents as from time to time amended or supplemented in
connection with the offering and sale of the Securities and in accordance with
the applicable provisions of the '33 Act and
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Regulation D. The Company consents to the Agent's distribution of the Offering
Documents to the Investor as a disclosure document about the Company, its
business, prospects, financial condition and other matters.
2.3 Accuracy of Offering Documents. The Offering Documents, at the time
of filing, conformed in all material respects with the requirements, to the
extent applicable, of the '34 Act and the applicable Rules and Regulations and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. On the Closing Date (as hereinafter defined), the Offering Documents
will contain all statements which are required to be stated therein in
accordance with the '34 Act and the Rules and Regulations for the purposes of
the proposed Offering, and all statements of material fact contained in the
Offering Documents will be true and correct, and the Offering Documents will not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
provided, however, that the Company does not make any representations or
warranties as to the information contained in or omitted from the Offering
Documents in reliance upon written information furnished on behalf of the Agent
or the Investors specifically for use therein.
2.4 Duty to Amend. If during such period of time as in the reasonable
opinion of the Agent or its counsel any Offering Documents relating to this
offering are required to be delivered under the '34 Act, any event occurs or any
event known to the Company relating to or affecting the Company shall occur as a
result of which the Offering Documents as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any time
after the date hereof to amend or supplement the Offering Documents to comply
with the '34 Act or the applicable Rules and Regulations, the Company shall
forthwith notify the Agent thereof and shall prepare such further amendment or
supplement to the Offering Documents as may be required and shall furnish and
deliver to the Agent and to others, whose names and addresses are designated by
the Agent, all at the cost of the Company, a reasonable number of copies of the
amendment or supplement or of the amended or supplemented Offering Documents
which, as so amended or supplemented, will not contain an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
Offering Documents not misleading in the light of the circumstances when it is
delivered to the Investor and which will comply in all respects with the
requirements (to the extent applicable) of the '34 Act and the applicable Rules
and Regulations.
2.5 Corporate Condition. The Company's condition is as described in its
Offering Documents, except for changes in the ordinary course of business and
normal year-end adjustments that are not in the aggregate materially adverse to
the Company. The Offering Documents, taken as a whole, present fairly the
business and financial position of the Company as of the Closing Date, except
for the current cash position of the Company.
2.6 No Material Adverse Change. Except as may be reflected in or
contemplated by the Offering Documents, subsequent to the dates as of which
information is given in the Offering Documents, and prior to the Closing Date,
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.
2.7 No Defaults. Except as disclosed in the Offering Documents or in
writing to the Agent, the Company is not in default in any material respect in
the performance of any obligation, agreement or condition contained in any
material debenture, note or other evidence of indebtedness or any material
indenture or loan agreement of the Company. The execution and delivery of this
Agreement, and the
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consummation of the transactions herein contemplated, and compliance with the
terms of this Agreement will not conflict with or result in a breach of any of
the terms, conditions or provisions of, or constitute a default under, the
Articles of Incorporation or By-Laws of the Company (in any respect that is
material to the Company), any material note, indenture, mortgage, deed of trust,
or other agreement or instrument to which the Company is a party or by which the
Company or any property of the Company is bound, or to the Company's knowledge,
any existing law, order, rule, regulation, writ, injunction or decree of any
government, governmental instrumentality, agency or body, arbitration tribunal
or court, domestic or foreign, having jurisdiction over the Company or any
property of the Company. The consent, approval, authorization or order of any
court or governmental instrumentality, agency or body is not required for the
consummation of the transactions herein contemplated except such as may be
required under the '33 Act or under the Blue Sky or securities laws of any state
or jurisdiction.
2.8 Incorporation and Standing. The Company is, and at the Closing
Date will be, duly formed and validly existing in good standing as a corporation
under the laws of the State of Delaware and with full power and authority
(corporate and other) to own its properties and conduct its business, present
and proposed, as described in the Offering Documents; the Company, has full
power and authority to enter into this Agreement; and the Company is duly
qualified and in good standing as a foreign entity in each jurisdiction in which
the failure to so qualify would have a material adverse effect on the Company or
its properties.
2.9 Legality of Outstanding Securities. Prior to the Closing Date, the
outstanding securities of the Company have been duly and validly authorized and
issued, fully paid and nonassessable and conform in all material respects to the
statements with regard thereto contained in the Offering Documents.
2.10 Legality of Securities. The Securities, when sold and delivered,
will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with the terms thereof, and shall be duly and validly issued and
outstanding, fully paid and nonassessable. The Securities, when issued, shall be
duly and validly issued and outstanding, fully paid and non-assessable.
2.11 Litigation. Except as set forth in the Offering Documents, there
is now, and at the Closing Date there will be, no action, suit or proceeding
before any court or governmental agency, authority or body pending or, to the
knowledge of the Company, threatened, which might result in judgements against
the Company not adequately covered by insurance or which collectively might
result in any material adverse change in the condition (financial or otherwise)
or business of the Company or which would materially adversely affect the
properties or assets of the Company.
2.12 Finders. The Company does not know of any outstanding claims for
services in the nature of a finder's fee or origination fees with respect to the
sale of the Securities hereunder for which the Agent may be responsible, and the
Company will indemnify the Agent from any liability for such fees by any party
who has a claim for such compensation from the Company and for which person the
Agent is not legally responsible.
2.13 Tax Returns. The Company has filed all federal and state tax
returns which are required to be filed, and has paid all taxes shown on such
returns and on all assessments received by it to the extent such taxes have
become due. All taxes with respect to which the Company is obligated have been
paid or adequate accruals have been set up to cover any such unpaid taxes.
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2.14 Authority. The execution and delivery by the Company of this
Agreement have been duly authorized by all necessary action, and this Agreement
is the valid, binding and legally enforceable obligation of the Company subject
to standard qualifications as to the availability of equitable remedies, the
effect of bankruptcy and other laws relating to the protection of debtors and
public policy opinions promulgated by the Commission with respect to
indemnification against liabilities under the '33 Act.
2.15 Actions by the Company. The Company will not take any action which
will impair the effectiveness of the transactions contemplated by this
Agreement.
3. Issue, Sale and Delivery of the Securities.
3.1 Deliveries of Securities. Certificates in such form that, subject
to applicable transfer restrictions as described in the Securities Purchase
Agreement, they can be negotiated by the Investor for the Securities, and
warrants representing the Agent's warrant compensation described in Section 3.4
below ("WARRANTS"), shall be delivered by the Company to the Escrow Agent, with
copies made available to the Agent for checking at least one (1) full business
day prior to the Closing Date. The certificates for the Securities and the
Warrants shall be delivered at the Closing (as defined hereinafter).
3.2 Escrow of Funds. Pursuant to the Escrow Agreement, a copy of which
is attached hereto as Exhibit "B" (the "ESCROW AGREEMENT"), executed by the
Company, the Agent and the escrow agent (the "ESCROW AGENT"), the Investor shall
place all funds for purchase of Securities and the Company will place the
Securities for the Closing in an escrow account set up by the Escrow Agent. Upon
the Closing, Escrow Agent shall release the subscription funds to the Company
and the certificates representing the Securities shall be released by the
Company to the Investor (the "CLOSING").
3.3 Closing Date. The Closing shall take place at the offices of Xxxx
Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000, 0000 Xxxxxxxxx
Xxxx, XX, Xxxxxxx, Xxxxxxx 00000 at such time and date ("CLOSING DATE") as
mutually agreed by the Company and the Agent. The Closing Date may be changed by
mutual agreement of the Investor, the Company, and the Agent.
3.4 Agent's Compensation. The Company shall pay the Agent:
(a) A commission of eight percent (8.0%) of the gross
subscription proceeds (the "GROSS PROCEEDS") to be paid upon the
Closing on the Closing Date; and
(b) In addition to the fees and reimbursement of costs set
forth in Sections 3.4 and 3.5 of this Agreement, the Company shall
issue to the Agent warrants ("WARRANTS") to purchase shares of the
Company's Common Stock, in an amount equal to___________ Warrants for
each $1,000,000 of Gross Proceeds of each, which shall be exercisable
for the Company's Common Stock on a one-for-one basis at a price per
share equal to $___________ per share. The term of the Warrants shall
be five years. Agent understands that the Warrants shall not be
exercisable and no shares of Common Stock will be reserved for issuance
upon the exercise of the Warrants until completion of the Registration
Statement as described in the Registration Rights Agreement. The shares
of Common Stock issuable upon exercise of the Warrants shall have
registration rights as described in the Registration Rights Agreement,
set forth as an exhibit to the Securities Purchase 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 reasonable
best efforts
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to include the Warrants (or underlying shares) in a registration
statement in a manner acceptable to the SEC.
3.5 Payment of Fees. The Escrow Agent shall be instructed to pay all
fees directly to the Agent from the Gross Proceeds of the Closing,
simultaneously with the transfer of Gross Proceeds to the Company.
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 Offering Documents. The Agent
shall commence making such offer as an agent for the Company as soon as possible
following delivery of the Offering Documents in a manner consistent with federal
or state securities 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. Confidentiality/Protection of Clients.
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 in the Offering and [NAME OTHER INVESTORS DIRECTLY
CONTACTED BY AGENT IN CONNECTION WITH THIS OFFERING] (the "CLIENTS"). For a
period of one year 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.
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 Offering Documents, of which
amendment or supplement 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
reasonably objected in writing on the ground that it is not in compliance with
the '34 Act or the Rules and Regulations (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 Agent, 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 (except as provided below) and accountants, the cost of
reproduction and furnishing to the Agent copies of the Offering Documents as
herein provided; provided, however, that the Company shall not be responsible
for the payment of fees and costs incurred by Agent, including attorney's fees
of or any costs incurred by the Agent's counsel.
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6.3 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 Investor is located, if any.
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 '33 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 '33Act 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 Offering
Documents or any amendment or supplement 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 Offering Documents 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 amount 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
alleged untrue statement or any such omission or alleged omission, if such
statement or omission was made in reliance upon information furnished in writing
to the Company by the Agent specifically for use in connection with the
preparation of the Offering Documents or any such amendment or supplement
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, unless such
delay materially prejudices the rights of the Company. Upon such notice, 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 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, each
person who controls the Company within the meaning of Section 15 of the '33 Act
and the Company's and Company's employees, accountants, attorneys and agents
(the "COMPANY'S INDEMNITEES") with respect to (i) any statement in or omission
from the Offering Documents or any amendment or supplement thereto or any
application or other document filed in any state or jurisdiction in order to
qualify F the Securities under the Blue Sky or securities laws thereof, or any
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information furnished pursuant to this Agreement, if such statement or omission
was made 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 Offering
Documents 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 Offering
Documents, or information furnished in writing by the Company or, (iii) any
breach of any material 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 so timely 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
all 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
(i) at 9:00 a.m., New York City time, on the date hereof or (ii) upon release by
the Escrow Agent of the Securities for offering after the date hereof, whichever
shall last occur.
9. Termination.
9.1 This Agreement may be terminated by the Agent by 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.
9.2 This Agreement may be terminated by the Company by 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.
9.3 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 6; 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.
10. Agent's Representations, Warranties, and Covenants. The Agent
represents and warrants to and agrees with the Company that:
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10.1 Agent is a corporation duly incorporated and existing under the
laws of the state of Georgia Agent is registered with the Securities Exchange
Commission and the NASD.
10.2 There is not now pending or threatened against the Agent any
action or proceeding of which the Agent has been advised, either in any court of
competent jurisdiction, before the Commission or before any state securities
commission or the NASD, concerning the Agent's activities which would impair the
ability of the Agent to conduct the Offering as contemplated by this Agreement.
10.3 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 Offering
Documents 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.
10.4 Agent understands and acknowledges that the Securities are not
being registered under the '33 Act, and that the Offering is to be conducted
pursuant to Regulation D. Accordingly, in conducting its activities under this
Agreement Agent shall offer Securities only to "accredited investors," as
defined in Regulation D.
10.5 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 one year.
11. Notices. Except as otherwise expressly provided in this Agreement:
11.1 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: HomeCom Communications, Inc.
Fourteen Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Treasurer
With a Copy to: Xxxxxxx X. Xxxx, Esq.
Xxxx Moss Kline & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
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11.2 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: X.X. Xxxxxx & Company, L.L.C.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx XxXxxx, Xxxxxxx Xxxxx, Xxxx Xxxxx
11.3 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.
12. Miscellaneous.
12.1 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 '33 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.
12.2 Survival. The respective indemnities, agreements, representations,
warranties, covenants and other statements of the Company and the Agent, or 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 for a period of three (3) years from the date hereof,
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.
12.3 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Georgia without regard to the
principles of conflict of laws. Any dispute or controversy between the parties
arising in connection with this agreement or the subject matter contemplated by
this agreement shall be resolved by arbitration before a three-member panel of
the American Arbitration Association in accordance with the commercial
arbitration rules of said forum and the Federal Arbitration Act, 9 U.S.C. 1 et
seq., with the resulting award being final and conclusive. Said arbitrators
shall be empowered to award all forms of relief and damages claimed, including,
but not limited to, attorney's fees, expenses of litigation and arbitration,
exemplary damages, and prejudgment interest. The parties further agree that any
arbitration action between them shall be heard in Atlanta, Georgia.
12.4 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.
12.5 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.
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12.6 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.
12.7 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.
12.8 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.
12.9 Independent Counsel. The Parties to this Agreement acknowledge
that Company has received independent counsel from the law firm of Xxxx Xxxx
Xxxxx & Xxxxx LLP which is acting as its counsel. Agent and each of the
Investors have been advised by Xxxx Moss Kline & Xxxxx LLP to seek independent
advice with respect to the terms and conditions of this Agreement as well as all
of the Offering Documents before signing them. The parties hereby acknowledge
that Xxxx Moss Kline & Xxxxx LLP has acted as counsel to Agent in other matters
unrelated to this Offering and consent to its representation herein on behalf of
the Company.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the day and year first above written.
"THE COMPANY"
HOMECOM COMMUNICATIONS, INC.
By:
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Xxxxxx X. Xxx
Chairman of the Board and Chief Executive
Officer
"THE AGENT"
X.X. XXXXXX & COMPANY, L.L.C.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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