PLACEMENT AGENT AGREEMENT
Exhibit 10.6
Midtown Partners & Co., LLC
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Phone: 000.000.0000 Fax: 000.000.0000
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Phone: 000.000.0000 Fax: 000.000.0000
This agreement (the “Agreement”), made as of this 11th day of December, 2006, by and between
Brookside Technology Partners, Inc., a Texas corporation, (the “Company”), with its principal
place of business at 0000 Xxxxxxx Xxxx., Xxxxxx, Xxxxx 00000 and MIDTOWN PARTNERS & CO., LLC, (the
“Placement Agent”, “Midtown” or “Midtown
Partners”), a Florida limited liability company, with its
principal place of business at 0000 Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxx, Xx 00000, confirms the
understanding and agreement between the Company and the Placement Agent as follows:
SECTION I
The Company hereby engages the Placement Agent as the Company’s exclusive placement agent in
connection with a proposed private placement in the United States (the “Offering”) of up to one
million seven hundred fifty thousand dollars (US$1,750,000) of the Company’s securities (the
“Financing”). The Offering will be made to solely “accredited investors” (the “Accredited
Investors”), as such term is defined in Rule 501(a) of Regulation D (“Regulation D”) promulgated
under the United States Securities Act of 1933, as amended (the “Securities Act”), pursuant to an
exemption from registration under applicable federal and state securities laws available under Rule
506 of Regulation D and in accordance with the terms of this Agreement. The terms and conditions
of the Financing shall be similar to those terms and provisions as attached in Exhibit A hereto
subject to a final term Sheet to be set forth at a later date to be approved by the
Company. The Placement Agent hereby accepts such engagement upon the terms and conditions set
forth in this Agreement. This Agreement shall not give rise to any commitment or obligation by the
Placement Agent to purchase any of the Financing or, except as set forth herein, to find purchasers
for the Financing.
The Placement Agent shall provide the following services (the “Services”):
(a) Advise the Company with regard to the size of the Offering and the structure and terms of
the Financing in light of the current market environment;
(b) Assist the Company in identifying and evaluating prospective qualified Accredited
Investors;
(c) Approach such investors on a “best efforts basis” regarding an investment in the Company;
and
(d) Work with the Company to develop a negotiating strategy and assist with the negotiations
with such potential investors.
In connection with the Placement Agent providing the Services, the Company agrees to keep the
Placement Agent up to date and apprised of all material business, market and legal developments
related to the Company and its operations and management. The Placement Agent shall devote such
time and effort, as it deems commercially reasonable under the circumstances in rendering the
Services. The Placement Agent shall not provide any work that is in the ordinary purview of a
certified public accountant. The
Placement Agent cannot guarantee results on behalf of the Company, but shall pursue all
avenues that it deems reasonable through its network of contacts.
SECTION II
The Placement Agent, its affiliates and any person acting on its or their behalf hereby
represent, warrant and agree as follows (the “Placement Agent Parties”):
(a) The Financing offered and sold by the Placement Agent have been and will be offered and
sold in compliance with all federal and state securities laws and regulations governing the
registration and conduct of broker-dealers, and each Placement Agent Party making an offer or sale
of Financing was or will be, at the time of any such offer or sale, registered as a broker-dealer
pursuant to Section 15(b) of the United States Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and under the laws of each applicable state of the United States (unless exempted
from the respective state’s broker-dealer registration requirements), and in good standing with the
National Association of Securities Dealers, Inc.
(b) The Financing offered and sold by the Placement Agent have been and will be offered and
sold only to Accredited Investors in accordance with Rule 506 of Regulation D and applicable state
securities laws; provided, however, the Company shall make all necessary filings under Rule 503 of
Regulation D and such similar notice filings under applicable state securities laws. The Placement
Agent Parties represent and warrant that they have reasonable grounds to believe and do believe
that each person to whom a sale, offer or solicitation of an offer to purchase Financing was or
will be made was and is an Accredited Investor. Prior to the sale and delivery of a security to
any such investor, the Placement Agent Parties will obtain an executed subscription agreement and
an executed investors’ rights agreement in the form agreed upon by the Company and the Placement
Agent (the “Subscription Documents”).
(c) In connection with the offers and sales of the Financing, the Placement Agent Parties have
not and will not
(1) Offer or sell, or solicit any offer to buy, any Financing by any form of “general
solicitation” or “general advertising”, as such terms are used in Regulation D, or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act;
(2) Use any written material other than the term sheet, that will be approved by the Company
at a later date, and the Placement Agent, a copy of which is attached hereto as Exhibit A,
and the Subscription Documents, and shall only rely upon and communicate information that is
publicly available regarding the Company to any potential investors (without limiting the
foregoing, none of the Placement Agent Parties is authorized to make any representation or warranty
to any offeree concerning the Company or an investment in the Financing); or
(3) Take any action that would constitute a violation of Regulation M under the Exchange Act.
(d) The Placement Agent shall cause each affiliate or each party acting on its or their behalf
with whom they enter into contractual arrangements relating to the offer and sale of any Financing
to agree, for the benefit of the Company, to the same provisions contained in this Agreement.
SECTION III
During the Term (as defined below), the Placement Agent is hereby retained by the Company to
make limited introductions on a best efforts basis to provide financing for the Company in an
amount and form to be mutually determined by the Company and the Placement Agent.
SECTION IV
The Company hereby represents warrants and agrees as follows:
(a) This Agreement has been authorized, executed and delivered by the Company and, when
executed by the Placement Agent will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by general equitable principles.
(b) The offer and sale of the Financing, the Shares, and the Warrants shall be exempt from
registration under the Securities Act, and will comply, in all material respects with the
requirements of Rule 506 of Regulation D promulgated under the Securities Act and any applicable
state securities laws. No documents prepared by the Company in connection with the Offering, or any
amendment or supplement thereto, 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, in
light of the circumstances under which they were made, not misleading.
(c) The financial statements, audited and unaudited (including the notes thereto), included in
the Company’s latest annual information form and subsequent quarterly reports (the “Financial
Statements”), present fairly the financial position of the Company as of the dates indicated and
the results of operations and cash flows of the Company for the periods specified. Such Financial
Statements have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved except as otherwise stated therein.
(d) No federal, state or foreign governmental agency has issued any order preventing or
suspending the Offering.
(e) The Company is a Texas corporation organized, existing and with active status under the
laws of Texas, with corporate power and authority under such laws to own, lease and operate its
properties and conduct its business as now conducted. The Company has all power, authority,
authorization and approvals as may be required to enter into this Agreement and each of the
Subscription Documents, and to carry out the provisions and conditions hereof and thereof, and to
issue and sell the Financing, the Shares, and Warrants.
(f) The Financing, the Shares, the Warrants, and common shares issuable upon exercise of the
Warrants (the “Warrant Shares”), have all been authorized for issuance and sale pursuant to the
Subscription Documents, and when issued and delivered by the Company against payment therefore in
accordance with the terms of the Subscription Documents, will be validly issued and fully paid and
non-assessable.
(g) With the exception of any approvals required by the Securities and Exchange Commission
related to the Offering, no further approval or authorization of any shareholder of the Company,
its Board of Directors or other person or group is required for the issuance and sale of the
Financing, the Shares, the Warrants or the Warrant Shares.
(h) Since the latest unaudited financial statements there has not been any (A) material
adverse change in the business, properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company, (B) transaction that is material to the Company, except
transactions in the ordinary course of business, (C) obligation that is material to the Company,
direct or contingent, incurred by the Company, except obligations incurred in the ordinary course
of business, (D) change that is material to the Company or in the common shares or outstanding
indebtedness of the Company, or (E) dividend or distribution of any kind declared, paid, or made in
respect of the common shares.
SECTION V
The parties agree that the close of the Offering (the “Closing”) shall be subject to the
satisfaction of the following conditions, unless expressly waived in writing by the parties:
(a) The Offering shall not be subject to any regulatory or judicial proceeding questioning or
reviewing its effectiveness for the purpose of offering the Financing for sale and issuance.
(b) The Company shall deliver a certificate of an officer of the Company dated as of the
Closing that affirms the accuracy of the representations and warranties contained in Section IV
hereof.
(c) The Agent shall have received an opinion of counsel to the Company, dated as of the
Closing, that the Financing offered and sold in compliance with this Agreement are not required to
be registered under the Securities Act.
(d) The Company shall have paid, or made arrangements satisfactory to the Agent for the
payment of, all such expenses as required by Section VIII below.
(e) The Placement Agent and the Company shall have finalized and agreed to the form of the
warrant agreement and registration rights agreement referred to in Section VIII below.
SECTION VI
(a) The term of this Agreement shall commence on the date first written above and shall expire
the earlier of one (1) year after the date the Company (aa) provides the Placement Agent with
requested due diligence materials and (bb) the Company and the Placement Agent mutually agree that
information documents (including, but not limited to: a business plan; executive summary;
three-year historical income statement, statement of cash flows, and balance sheet; five-year
projected financial statements; use of proceeds statement; investor presentation; valuation
analysis), to be provided and approved by the Company and are ready for presentation to the
Placement Agent’s network of potential financing sources or the closing of the Offering or eighteen
(18) months after the date first written, unless terminated in accordance with the provisions set
forth below, or extended by the mutual written consent of the parties hereto (the “Term”). This
Agreement may be terminated only:
(1) By the Placement Agent for any reason at any time upon thirty (30) days’ prior written
notice; or
(2) By the Placement Agent upon default in the payment of any amounts due to the Placement
Agent pursuant to this Agreement, if such default continues for more than fifteen (15) days
following receipt by the Company from the Placement Agent of written notice of such default and
demand for payment.
(a) In the event of termination, the Placement Agent shall be immediately paid in full on all
items of compensation and expenses (including any amounts deferred) payable to the Placement Agent
pursuant hereto, as of the date of termination.
(b) The Placement Agent Fee or Financing Fee shall become due and payable to PLACEMENT AGENT
upon the date that the Company receives the proceeds of the financing from the party providing the
financing. A Placement Agent Fee shall also be payable with respect to any Qualified Offering or
any subsequent Qualified Financing accepted and received by Company within twelve (12) months after
the termination or expiration of this Agreement, by any party or source of funding introduced or
facilitated by PLACEMENT AGENT to Company; or
(3) By the Company or the Placement Agent for any reason at any time upon fifteen (15) days’
prior written notice after the completion of the initial Term; or
(4) By mutual agreement of the parties.
SECTION VII
At any time during the twelve (12) months following the termination of this Agreement, the
Placement Agent shall be entitled to the compensation and fees as set forth in Section VIII of this
Agreement for any Qualified Financing (as defined below) received by the Company. “Qualified
Financing” shall mean an investment from a person after the termination of this Agreement that
directly results from the Placement Agent’s performance of the Services hereunder during the Term
of this Agreement (for the avoidance of doubt this shall mean any solicitation of a potential
investor or an introduction of a potential investor to the Company by the Placement Agent related
to the Offering during the Term of this Agreement). The Placement Agent agrees to provide to the
Company within ten (10) days after the termination of this Agreement (the “Delivery Deadline”) a
list of all persons solicited on behalf of the Company or introduced to the Company by the
Placement Agent related to the Offering (the
“Solicitation List”) to assist the parties in making a later determination as to whether a
Qualified Financing has occurred. If the Solicitation List is not provided to the Company prior to
the expiration of the Delivery Deadline, the Company’s obligation to pay any commissions or fees
related to a Qualified Financing pursuant to this Section VII shall immediately terminate. For
purposes of this Agreement, receipt of Qualified Financing shall be deemed to be received by the
Company on the date that a definitive agreement regarding the Qualified Financing is executed by
the Company and the party providing such financing. The compensation or fees shall become payable
to the Placement Agent upon the date that the Company receives the proceeds of the Qualified
Financing.
The provisions set forth in this Section VII shall survive any termination of this Agreement.
SECTION VIII
In consideration for the performance of the Services hereunder, the Company hereby agrees to
pay to the Placement Agent such fees (“The Placement Agent Fee or the Financing Fee”) as outlined
below:
(a) If the Placement Agent receives subscriptions for Financing as a part of the Offering (the
“Placement Agent Investors”), the Company shall:
1) Pay to the Placement Agent in US dollars via wire from the attorney’s escrow at closing an
amount equal to ten percent (10%) of the principal amount of the Financing purchased by the
Placement Agent Investors (the “Financing Fee”), and pay to the Placement Agent five percent (5%)
on the execution of any Warrants purchased by the Investors. At the option of the Placement Agent,
the Placement Agent can accept up to 50% of the Financing Fee as “in kind” payment accepting the
same Securities as the investors.
2) On each closing date of a Financing on which aggregate consideration is paid or becomes
payable to the Company for its Equity Securities, the Company shall issue to the Placement Agent or
its permitted assigns warrants (the “Warrants”) to purchase such number of shares of the common
stock of the Company equal to fourteen percent (14%) of the aggregate number of shares of common
stock of the Company issued and issuable by the Company under and in connection with the
Financings. On each closing date of a Financing the Company shall issue to the Placement Agent all
Series of Warrants equal to fourteen percent (14%) of the number of Warrants issued to the
Placement Agent Investors. The number of shares of common stock issuable upon exercise of the
Warrants shall include all shares of common stock issuable under the Securities, including, without
limitation, shares issuable upon conversion or exercise of the Securities. The Warrants shall have
a ten (10) year term and shall provide for cashless exercise (even if the Purchasers do not have
such right) and have terms and conditions identical to the Securities purchased by the Purchasers,
including, without limitation, anti-dilution and full ratchet provisions to take into account any
issuance of additional shares of common stock as a result of an adjustment to the Securities or the
shares of common stock underlying the Securities. The Warrants shall be exercisable after the date
of issuance and shall expire ten (10) years after the date of issuance, unless otherwise extended
by the Company. The Warrants shall include anti-dilution protection, including protection against
issuances of securities at prices (or with exercise prices, in the case of warrants, options or
rights) below the exercise price of the Warrants. The Warrants shall not be callable or redeemable.
The Warrants shall also include one (1) demand registration right exercisable following the first
anniversary of the closing, and piggyback registration rights. The Warrants shall be transferable
within MIDTOWN PARTNERS, at the Placement Agent’s discretion.
3) An escrow with a third party agent approved by the parties hereto will be used for each
closing to which the Placement Agent shall be a party. All consideration due the Placement Agent
shall be paid to the Placement Agent directly there from.
4) Cause its affiliates to, pay to the Placement Agent all compensation described in this
Section VIII with respect to all Securities sold to a purchaser or purchasers at any time prior to
the expiration of thirty-six (36) months after the expiration of this Agreement (the “Tail Period”)
if (i) such purchaser or purchasers were identified to the Company by the Placement Agent during
the Term authorized, (ii) the Placement Agent advised the Company with respect to such purchaser or
purchasers during the Term authorized or (iii) the Company or the Placement Agent had discussions
with such purchaser or purchasers during the Term authorized.
5) It is acknowledged and agreed that the Company shall bear all costs and expenses incident
to the issuance, offer, sale and delivery of the Financing. These costs and expenses will include
but are not limited to state “Blue Sky” fees, legal fees, printing costs, travel costs, mailing,
couriers, personal background checks, and other expenses incidental to the advancement and
completion of the Offering. Full payment of Placement Agent’s expenses shall be made in same day
funds at the Closing or, if the Offering is terminated for any reason, within ten (10) days of
receipt by the Company of a written request from the Placement Agent for reimbursement of expenses,
including documentation therefore satisfactory to the Company.
Subject to the other requirements set forth in this Agreement, the Placement Agent may introduce
investors to the Offering directly or through other NASD member broker-dealers. If the Placement
Agent utilizes any intermediaries, the Placement Agent shall be the Company’s point of contact, not
the intermediary, and the Placement Agent, not the Company, shall be responsible for any
compensation arrangement with the intermediary. The Company’s sole compensation arrangement,
responsibility and obligation are with the Placement Agent. The Placement Agent will disclose the
identity and compensation arrangements with all of its intermediaries in order to allow the Company
to adequately disclose such arrangements, where necessary.
SECTION IX
The Company agrees to indemnify the Placement Agent and hold it harmless against any losses,
claims, damages or liabilities incurred by the Placement Agent, in connection with, or relating in
any manner, directly or indirectly, to the Placement Agent rendering the Services in accordance
with the Agreement, unless it is determined by a court of competent jurisdiction that such losses,
claims, damages or liabilities arose out of the Placement Agent’s breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or violation of any applicable
law. Additionally, the Company agrees to reimburse the Placement Agent immediately for any and all
expenses, including, without limitation, attorney fees, incurred by the Placement Agent in
connection with investigating, preparing to defend or defending, or otherwise being involved in,
any lawsuits, claims or other proceedings arising out of or in connection with or relating in any
manner, directly or indirectly, to the rendering of any Services by the Placement Agent in
accordance with the Agreement (as defendant, nonparty, or in any other capacity other than as a
plaintiff, including, without limitation, as a party in an interpleader action); provided, however,
that in the event a determination is made by a court of competent jurisdiction that the losses,
claims, damages or liability arose primarily out of the Placement Agent’s breach of this Agreement,
sole negligence, gross negligence, willful misconduct, dishonesty, fraud or any violation of any
applicable law, the Placement Agent will remit to the Company any amounts for which it had been
reimbursed under this paragraph. The Company further agrees that the indemnification and
reimbursement commitments set forth in this paragraph shall extend to any controlling person,
strategic alliance, partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Placement Agent and their heirs, legal representatives, successors and
assigns. The provisions set forth in this Section IX shall survive any termination of this
Agreement.
SECTION X
All notices, demands or other communications given hereunder shall be in writing and shall be
deemed to have been duly given when delivered in person or transmitted by facsimile transmission or
the fifth calendar day after being mailed by registered or certified mail, return receipt
requested, postage prepaid, to the addresses herein above first mentioned or to such other address
as any party hereto shall designate to the other for such purpose manner herein set forth.
SECTION XI
Governing Law. The subject matter of this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without reference to its choice of
law principles), and to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding
may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION AND VENUE
OF THE STATE AND/OR FEDERAL COURTS LOCATED IN HILLSBOROUGH COUNTY, FLORIDA FOR RESOLUTION OF ALL
DISPUTES ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND
ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS
CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT, EACH PARTY
SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO TRIABLE. If it becomes necessary
for any party to institute legal action to enforce the terms and conditions of this Agreement, the
prevailing party may be awarded reasonable attorneys fees, expenses and costs.
Confidentiality. The Placement Agent may acquire certain non-public information
respecting the business of the Company in connection with the performance of services hereunder,
including information, which is reasonably understood to be proprietary or confidential in nature
(collectively, “Confidential Information”). The Placement Agent hereby agrees that all
Confidential Information shall be kept strictly confidential by the Placement Agent and its
affiliates, members, partners, shareholders, managers, directors, officers, employees, advisors,
agents, and controlling persons (collectively, “Representatives”), except that Confidential
Information or portions thereof may be disclosed to Representatives who need to know such
information for the purpose of enabling the Placement Agent to perform services hereunder (it being
understood that prior to such disclosure, such Representative will be informed by the Placement
Agent of the confidential nature of such Confidential Information and shall agree to be bound by
this Agreement). The Placement Agent shall be responsible for any breach of this provision by any
of its Representatives. For purposes hereof, Confidential Information shall not include any
information which (i) at the time of disclosure or thereafter is or becomes generally known by the
public (other than as a result of its disclosure by the Placement Agent or its Representatives),
(ii) was or becomes available to the Placement Agent on a non-confidential basis from a person who
is not subject to a confidentiality agreement concerning that information, or (iii) is required by
law to be disclosed by the Placement Agent (provided that if such disclosure is required by order
of a court or administrative agency, the Placement Agent shall notify the Company as soon as
possible so that the Company may seek a protective order).
Assignments and Binding Effect. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and permitted assigns. The rights
and obligations of the parties under this Agreement may not be assigned or delegated without the
prior written consent of both parties, and any purported assignment without such written consent
shall be null and void.
Modification and Waiver. Only an instrument in writing executed by the parties hereto
may amend this Agreement. The failure of any party to insist upon strict performance of any of the
provisions of this Agreement shall not be construed as a waiver of any subsequent default of the
same or similar nature, or any other nature.
Construction. The captions used in this Agreement are provided for convenience only
and shall not affect the meaning or interpretation of any provision of this Agreement.
Facsimile Signatures. Facsimile transmission of any signed original document, and
re-transmission of any signed facsimile transmission, shall be the same as delivery of an original.
At the request of either party, the parties shall confirm facsimile transmitted signatures by
signing an original document. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall constitute one and the same
agreement.
Severability. If any provision of this Agreement shall be invalid or unenforceable in
any respect for any reason, the validity and enforceability of any such provision in any other
respect, and of the remaining provisions of this Agreement, shall not be in any way impaired.
Exclusive. Midtown acknowledges and agrees that it is being granted exclusive rights
with respect to the Services to be provided to the Company and the Company is not free to engage
other parties to provide services similar to those being provided by Midtown hereunder without the
prior written consent of Midtown.
Non-Circumvention. The Company hereby irrevocably agrees not to circumvent, avoid,
bypass, or obviate, directly or indirectly, the intent of this Agreement. The Company agrees not to
accept any business opportunity from any third party to whom PLACEMENT AGENT introduces to the
Company without the consent of PLACEMENT AGENT, unless for each business opportunity accepted by
the Company from a third party introduced by PLACEMENT AGENT, the Company remits a term sheet and
then a contract which defines a mutually agreeable compensation structure for PLACEMENT AGENT. In
addition, the Company shall not work with, negotiate with or enter into any equity linked financing
whatsoever with any Investor, Consultant or Placement Agent without Midtown’s prior written
consent. If the Company raises capital through in any equity offering or sale or equity linked
instrument while engaged with Midtown as the exclusive Placement Agent, the Company shall pay to
Midtown all of its fees in Section VIII, even if the Placement Agent has provided no assistance
whatsoever in raising such capital.
Survivability. Neither the termination of this Agreement nor the completion of any
services to be provided by the Placement Agent hereunder, shall affect the provisions of this
Agreement that shall remain operative and in full force and effect.
Entire Agreement. This Agreement constitutes the entire agreement and understanding
of the parties hereto with respect to the subject matter of this Agreement and supersedes all prior
understandings and agreements, whether written or oral, among the parties with respect to such
subject matter.
If the foregoing correctly sets forth the understanding between the Placement Agent and the
Company, please so indicate in the space provided below for that purpose within 10 days of the date
hereof or this Agreement shall be withdrawn and become null and void. The undersigned parties
hereto have caused this Agreement to be duly executed by their authorized representatives, pursuant
to corporate board approval and intend to be legally bound.
| BROOKSIDE TECHNOLOGY | MIDTOWN PARTNERS & CO., LLC | |||||
| PARTNERS, INC. | ||||||
By:
|
By: | Xxxxx Xxxxxx, President |
||||
| Xxxxx Xxxxxx, President | ||||||
