Exhibit 10.43
PLACEMENT AGENT AGREEMENT
April 10, 2006
Xxxxxxx Investment Company, Inc.
000 XX Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Dear Sirs:
The undersigned, NuVim, Inc., a Delaware corporation (the "Company"),
hereby agrees with Xxxxxxx Investment Company, Inc. ("Xxxxxxx" or "Placement
Agent") as follows:
1. Best Efforts Offering. The Company hereby engages Xxxxxxx to
act as its exclusive agent during the term of the offering as outlined herein to
sell up to a maximum of $500,000, subject to an over allocation, (the "Maximum")
of Common Stock (the "Shares"), on a "best efforts" basis, on the terms
substantially as set forth in the Term Sheet attached hereto as Exhibit A (the
"Offering"). The Units shall be offered without registration under the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (the "Act") pursuant to the exemption from registration created by
Regulation D thereof.
2. Information Package. Subscribers shall be referred to the
Company's Registration Statement on Form SB-2 as effective June 21, 2006, Annual
Reports on Form 10-KSB for the Fiscal Year ended 12/31/05; Quarterly Reports on
Form 10-QSB for the quarters ended 6/30/05 and 9/30/05 and Current Reports on
Form 8-K filed 8/17/05, 11/9/05, and 12/27/05 and the amendments filed thereto
(the "SEC Documents") filed with the U.S. Securities and Exchange Commission
(the "SEC"). The Company will provide access to whatever additional information
concerning the Company, its financial condition, its business, its prospects,
its management, its capitalization, and other similar matters, that the
subscribers or their representatives, if any, desire, provided that the Company
can acquire such information without unreasonable effort or expense. The
subscribers may also obtain any additional information necessary to verify the
accuracy of the information in the SEC Documents. The Company will be available
to answer any question to have posed to it. The Company agrees that it shall
modify or supplement the SEC Documents during the course of the Offering to
insure that the SEC Documents do not contain 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 not misleading.
3. Compensation. Xxxxxxx will be paid at the closing of the
Offering a cash commission of 7% and a non-accountable expense allowance of 3%
of the aggregate amount of the Shares sold
4. Expenses. Whether or not the Offering is successfully
completed, it shall be the Company's obligation to bear all of its expenses in
connection with the proposed Offering.
5. Further Representations and Agreements of the Company. The
Company further represents and agrees that (i) it is authorized to enter into
this Agreement and to carry out the Offering contemplated hereunder and this
Agreement constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, (ii) the number of shares, options,
warrants and other securities convertible into shares of common stock of the
Company (collectively "Common Stock Equivalents") outstanding shall be set forth
in the SEC Documents and the Company shall not issue any additional Common Stock
Equivalents during the term of the Offering, (iii) the Company will, during the
course of the Offering, provide Xxxxxxx with all information and copies of
documentation with respect to the Company's business, financial condition and
other matters as Xxxxxxx may reasonably deem relevant,
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including copies of all documents sent to stockholders or filed with any federal
authorities, and will make reasonably available to Xxxxxxx, its auditors,
counsel, and officers and directors to discuss with Xxxxxxx any aspect of the
Company or its business which Xxxxxxx may reasonably deem relevant, (iv) the
Company agrees that for a period of 90 days after the close of the Offering, it
shall not issue or sell any Common Stock of the Company, unless the issuance or
sale is related to a strategic transaction or an employee, consultant, supplier,
lender or lessor option grant or issuance and (v) the Company will deliver at
the closing of sales conducted hereunder (a) a certificate of each of the
Company's Chief executive Officer and Chief Financial Officer to the effect that
the SEC Documents meet the requirements hereof and has been modified or
supplemented as required by Paragraph 2 hereof and does not contain any untrue
statement of material fact or fail to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
all necessary corporate approvals have been obtained to enable the Company to
deliver the Shares in accordance with the terms of the Offering and (b) an
opinion of counsel for the Company, which shall be satisfactory to Xxxxxxx and
that is standard and customary for such a transaction.
6. Indemnification. See Exhibit B attached hereto.
7. Termination. The Company shall have the right to terminate
this Agreement in the event that the Maximum is not subscribed for within sixty
(60) days of the date hereof. The Company and Xxxxxxx may terminate or extend
the Agreement at any time by mutual written consent.
8. Competing Claims. The Company acknowledges and agrees that no
entity has any claims or is entitled to any payments for services in the nature
of a finder's fee or any other arrangements, agreements, payments or
understandings pursuant to this Offering.
9. Press Release. Within three business days of the date hereof,
the Company will issue a press release which will describe the terms of the
Offering and which shall comply with the requirements of Rule 135c promulgated
under the Securities Act of 1933, as amended.
10. Miscellaneous.
(a) Governing Law. This Agreement and the transactions contemplated
hereby shall be governed in all respects by the laws of the State of Oregon,
without giving effect to its conflict of laws principles.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
(c) Notices. Whenever notice is required to be given pursuant to this
Agreement, such notice shall be in writing and shall either be (i) mailed by
certified first class mail, postage prepaid, addressed (a) if to Xxxxxxx, at the
address set forth at the head of this Agreement, Attention: Xxxxxxx Xxxxxxx; and
(b) if to the Company, at NuVim, Inc., 00 Xxxxx 00 Xxxxx, Xxx. 000, Xxxxxxx, XX
00000, Attention: Xxxx Xxxxxxx, Chief Executive Officer; or (ii) delivered
personally or by express courier. The notice shall be deemed given, if sent by
mail, on the third day after deposit in a United States post office receptacle,
or if delivered personally or by express courier, then upon receipt.
(d) Dispute. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement or the transactions
contemplated by this Agreement, the prevailing party, or parties, shall be paid
its reasonable attorney's fees and expenses arising from such action, suit or
proceeding by the other party.
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If the foregoing correctly sets forth the understanding between Xxxxxxx
and the Company, please so indicate in the space provided below for that purpose
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
NuVim, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx,
Chief Executive Officer
Confirmed and agreed to:
Xxxxxxx Investment Company, Inc.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------
________________
________________
Date: April 10, 2006
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EXHIBIT A
CONFIDENTIAL
NUVIM, INC.
PRIVATE PLACEMENT OF COMMON STOCK
PRELIMINARY TERM SHEET
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I. THE OFFERING
ISSUER: NuVim, Inc.(the "Company"), a Delaware corporation.
ISSUE: Private Placement of Common Stock (the "Blocks")
issued to accredited investors only. Each Block
shall consist of 100,000 shares of Common Stock.
ISSUE PRICE: $20,000 per Block.
ISSUE SIZE: A Maximum of $500,000.
PURCHASE AGREEMENT: The shares of Common Stock shall be purchased
pursuant to a Securities Purchase/Subscription
Agreement which shall contain representations,
warranties and covenants and conditions to closing
customary for a transaction of this kind.
REGISTRATION REQUIREMENTS: The Company shall use its best efforts to file with
the SEC a registration statement (the "Registration
Statement") for the Common Stock no later than 30
days of the sales of at least 25 Blocks and to have
such Registration Statement declared effective
within 75 business days of the Closing Date, if
there is no SEC review, and 120 business days if
the SEC reviews the filing.
USE OF PROCEEDS: Working capital.
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XXXXXXX X
Xxxxx 00, 0000
Xxxxxxx Investment Company, Inc.
000 XX Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Xxxxx Xxxxx
Gentlemen:
In connection with our engagement of Xxxxxxx Investment Company, Inc.
("Xxxxxxx") as our placement agent, we hereby agree to indemnify and hold
harmless Xxxxxxx and its affiliates, and the respective controlling persons,
directors, officers, shareholders, agents and employees of any of the foregoing
(collectively the "Indemnified Persons"), from and against any and all claims,
actions, suits, proceedings (including those of shareholders), damages,
liabilities and expenses incurred by any of them (including the reasonable fees
and expenses of counsel), (collectively a "Claim"), which are (A) related to or
arise out of (i) any actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by the Company, or (ii)
any actions taken in good faith or omitted, in good faith, to be taken by any
Indemnified Person in connection with our engagement of Xxxxxxx, or (B)
otherwise relate to or arise out of Xxxxxxx'x good faith activities on our
behalf under Xxxxxxx'x engagement, and we shall reimburse any Indemnified Person
for all expenses (including the reasonable fees and expenses of counsel)
incurred by such Indemnified Person in connection with investigating, preparing
or defending any such claim, action, suit or proceeding, whether or not in
connection with pending or threatened litigation in which any Indemnified Person
is a party. We will not, however, be responsible for any Claim, which is finally
judicially determined to have resulted from the gross negligence or willful
misconduct of any person seeking indemnification hereunder. We further agree
that no Indemnified Person shall have any liability to us for or in connection
with our engagement of Xxxxxxx except for any Claim incurred by us as a result
of any Indemnified Person's gross negligence or willful misconduct.
We further agree that we will not, without the prior written consent of
Paulson, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be sought
hereunder (whether or not any Indemnified Person is an actual or potential party
to such Claim), unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person hereunder from any
and all liability arising out of such Claim.
Promptly upon receipt by an Indemnified Person of notice of any
complaint or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify
us in writing of such complaint or of such assertion or institution but failure
to so notify us shall not relieve us from any obligation we may have hereunder,
unless and only to the extent such failure results in the forfeiture by us of
substantial rights and defenses. If we so elect or are requested by such
Indemnified Person, we will assume the defense of such Claim, including the
employment of counsel reasonably satisfactory to such Indemnified Person and the
payment of the fees and expenses of such counsel. In the event, however, that
legal counsel to such Indemnified Person reasonably determines and provides
written correspondence to us, that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of, any
such Claim, includes an Indemnified Person and us, and legal counsel to such
Indemnified Person reasonably
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concludes that there may be legal defenses available to it or other Indemnified
Persons different from or in addition to those available to us, then such
Indemnified Person may employ its own separate counsel to represent or defend it
in any such Claim and we shall pay the reasonable fees and expenses of such
counsel. Notwithstanding anything herein to the contrary, if we fail timely or
diligently to defend, contest, or otherwise protect against any Claim, the
relevant Indemnified Party shall have the right, but not the obligation, to
defend, contest, compromise, settle, assert crossclaims, or counterclaims or
otherwise protect against the same, and shall be fully indemnified by us
therefor, including without limitation, for the reasonable fees and expenses of
its counsel and all amounts paid as a result of such Claim or the compromise or
settlement thereof. In any Claim in which we assume the defense, the Indemnified
Person shall have the right to participate in such Claim and to retain its own
counsel therefor at its own expense.
Xxxxxxx agrees that it will indemnify and hold harmless the Company and
each of its directors and officers, against any Loss whatsoever (including, but
not limited to, any and all legal fees and other expenses) to which the Company
or any such director or officer may be subject solely as a result of statements
made in the Private Placement Memorandum based solely upon information supplied
by Xxxxxxx to the Company in writing or based upon the gross negligence or
willful misconduct of Xxxxxxx or any of its employees or agents in acting as
Placement Agent for the offering and sale hereunder.
We agree that if any indemnity sought by an Indemnified Person hereunder
is held by a court to be unavailable for any reason then (whether or not Xxxxxxx
is the Indemnified Person), we and Xxxxxxx shall contribute to the Claim for
which such indemnity is held unavailable in such proportion as is appropriate to
reflect the relative benefits to us, on the one hand, and Xxxxxxx on the other,
in connection with Xxxxxxx'x engagement referred to above, subject to the
limitation that in no event shall the amount of Xxxxxxx'x contribution to such
Claim exceed the amount of fees actually received by Xxxxxxx from us pursuant to
Xxxxxxx'x engagement. We hereby agree that the relative benefits to us, on the
one hand, and Xxxxxxx on the other, with respect to Xxxxxxx'x engagement shall
be deemed to be in the same proportion as (a) the total value paid or proposed
to be paid or received by us or our stockholders as the case may be, pursuant to
the transaction (whether or not consummated) for which you are engaged to render
services bears to (b) the fee paid or proposed to be paid to Xxxxxxx in
connection with such engagement.
Our indemnity, reimbursement and contribution obligations under this
Agreement shall be in addition to, and shall in no way limit or otherwise
adversely affect any rights that any Indemnified Party may have at law or at
equity.
The validity and interpretation of this agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Oregon
applicable to agreements made and to be fully performed therein (excluding the
conflicts of laws rules). Each of Xxxxxxx and the Company hereby irrevocably
submits to the jurisdiction of any court of the State of Oregon, Multnomah
County or the United States District Court of Oregon for the purpose of any
suit, action or other proceeding arising out of this agreement or the
transactions contemplated hereby, which is brought by or against Xxxxxxx or the
Company and in connection therewith, each of Xxxxxxx and the Company (i) hereby
irrevocably agrees that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court, (ii) to the extent
that it has acquired, or hereafter may acquire, any immunity from jurisdiction
of any such court or from any legal process therein, it hereby waives, to the
fullest extent permitted by law, such immunity and (iii) agrees not to commence
any action, suit or proceeding relating to this agreement other than in any such
court. Each of Xxxxxxx and the Company hereby waives and agrees not to assert in
any such action, suit or proceeding, to the fullest extent permitted by
applicable law, any claim that (a) it is not personally subject to the
jurisdiction of any such court, (b) it is immune from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to its property of (c) any suit,
action or proceeding is brought in an inconvenient forum.
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The provisions of this Agreement shall remain in full force and effect
following the completion or termination of Xxxxxxx'x engagement.
Very truly yours,
NuVim, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx,
Chief Executive Officer
Confirmed and agreed to:
Xxxxxxx Investment Company, Inc.
By: /s/ Xxxxxxxx Xxxxxxxx
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________________
________________
Date: April 10, 2006
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