PLACEMENT AGENT AGREEMENT July ___, 2008
July ___, 2008
Xx Xxxxx
Xxxxxxxx
Chief
Executive Officer
Xxxxx
World Trade Ltd.
000-00
000xx Xxxxxx
Xxxxxxx,
XX 00000
Dear Xx.
Xxxxxxxx:
We are pleased to confirm our agreement
pursuant to this letter of engagement (the “Agreement”) under which
________________ (“Placement Agent”), a
Member NASD/FINRA, is engaged by Xxxxx World Trade Ltd., a Nevada corporation
(the “Company”).
1.
Engagement. Placement Agent is hereby
engaged as the Company’s placement agent for the purpose of finding “Investors”
for the Xxxxx Fixed Rate Convertible Promissory Note (the "Note") debt financing
of up to Three Million Dollars ($3,000,000) (the "Transaction"). The
Company acknowledges that there is no guaranty or assurance that the Transaction
will take place, and that Placement Agent makes no representation or warranties
regarding the same. It is agreed and understood that at all times,
the Company shall have the right to approve or disapprove the terms and
conditions of any Transaction and the Company shall be solely responsible for
ensuring that the terms and conditions of the transaction are suitable and
appropriate for the Company. The term “Investor,” or “Investors,” shall mean any
individual, corporation, institution, group, organization or other entity
identified by Placement Agent, which has not been previously introduced or known
to the Company, that participates in the Transaction during the term of this
Agreement (or thereafter as set forth herein) by contributing value to the
Company.
To the extent possible, the Company
will furnish Placement Agent with all financial and other information and data,
as Placement Agent believes appropriate in connection with its activities on the
Company’s behalf, and shall provide Placement Agent access to its officers,
directors, employees and professional advisors. the Company will be solely
responsible for preparing or approving any and all term sheets and documentation
materials for the Transaction, including the materials describing the Company,
its operations, historical performance and future prospects which we understand
have been publicly filed with the Securities and Exchange Commission (the "SEC")
(the “Offering Materials”).
The Company, to the extent possible,
authorizes Placement Agent to transmit the Offering Materials to prospective
Investors of the proposed Transaction. The Company will also cause to
be furnished to Placement Agent and addressed to it at the closing, copies of
such agreements, opinions, certificates and other documents delivered at the
closing as Placement Agent may reasonably request. The Company will promptly
notify Placement Agent if it learns of any material inaccuracy or misstatement
in, or material omission from, any information theretofore delivered to
Placement Agent.
2.
Agency. On the basis of
the representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, Placement Agent has agreed
to act as a non-exclusive agent of the Company in providing accredited investors
[as that term is defined in the Rules and Regulations under the Securities Act
of 1933 (the " '33
Act")] only on a "best efforts" basis.
3.
Term of
Engagement. This Agreement shall expire ___ months from the date of
execution of this Agreement by the Company (unless extended by mutual
agreement). Upon any termination of expiration of this agreement,
Placement Agent will be entitled to payment of all fees due pursuant to the
terms and provisions of this Agreement.
4.
Payment
of Commissions and Expenses.
(a) The
Company hereby agrees to pay to the Placement Agent a commission for the
referral of Investors equal to ten percent (10%) of the total investment
received by the Company from the Investors referred to the Company by the
Placement Agent, together with five year warrants to purchase the number of
shares of the Company's $.001 par value common stock equal to 10% of the number
of dollars received from the Investors referred to the Company by the Placement
Agent at a purchase price of One Dollar Twenty-Five Cents ($1.25) per
share.
(b) The
Placement Agent shall not be responsible for any expense of the Company, and the
Company will not be responsible for any expense of the Placement Agent, unless
there is a written agreement for reimbursement of any expenses.
5.
Confidentiality.
The Company agrees that any written communication provided by Placement Agent
pursuant to this Agreement will be treated by the Company as confidential, will
be used solely for the information of the Company in connection with its
consideration of the Transaction, and will not be used, circulated, quoted or
otherwise referred to for any other purpose, nor will it be filed with, included
in or referred to, in whole or in part, in any SEC filing (unless such filing is
required by the rules or regulations of the SEC, or any other governmental or
SRO agency), or any other communication, whether written (including, without
limitation, the Offering Materials) or oral, prepared, issued or transmitted by
the Company or any affiliate, director, officer, employee, agent or
representative of any thereof, without, in each instance, Placement Agent’s
prior written consent.
6.
Indemnification.
(a) The
Company agrees to indemnify and hold harmless each of the Placement Agent (for
purposes of this Section 6, "Placement Agent" shall include the officers,
directors, partners, employees, agents and counsel of the Placement Agent, and
each person, if any, who controls the Placement Agent ("controlling person")
within the meaning of Section 15 of the Act or Section 20(a) of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages,
expenses or liabilities, joint or several (and actions in respect thereof),
whatsoever (including but not limited to any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever), as such are
incurred, to which the Placement Agent or such controlling person may become
subject under the Act, the Exchange Act, or any other statute or at common law
or otherwise or under the laws of foreign countries, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Offering Materials, unless such statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Placement Agent. The indemnity agreement in this
subsection (a) shall be in addition to any liability which the Company may have
at common law or otherwise.
(b) The
Placement Agent agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers and each other person, if any, who controls the
Company within the meaning of the Act, to the same extent as the
foregoing indemnity from the Company to the Placement Agent, but only
with respect to statements or omissions, if any, made in the Offering Materials
made in reliance upon written information furnished to the Company with respect
to the Placement Agent.
(c) Promptly
after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, suit or proceeding, such indemnified party shall, if
a claim in respect thereof is to be made against one or more indemnifying
parties under this Section 6, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action at the expense of the indemnifying
party, (ii) the indemnifying parties shall not have employed counsel reasonably
satisfactory to such indemnified party to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses of one additional counsel shall be borne by
the indemnifying parties. In no event shall the indemnifying parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Anything in this Section 6 to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
(d) In
order to provide for just and equitable contribution in any case in which (i) an
indemnified party makes claim for indemnification pursuant to this Section 6,
but it is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that the express provisions of
this Section 6 provide for indemnification in such case, or (ii) contribution
under the Act may be required on the part of any indemnified party, then each
indemnifying party shall contribute to the amount paid as a result of such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
(A) in such proportion as is appropriate to reflect the relative benefits
received by each of the contributing parties, on the one hand, and the party to
be indemnified on the other hand, from the offering of the Transaction or (B) if
the allocation provided by clause (A) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of each of the
contributing parties, on the one hand, and the party to be indemnified on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In any case where the Company is a
contributing party and the Placement Agent are the indemnified party, the
relative benefits received by the Company, on the one hand, and the Placement
Agent, on the other, shall be deemed to be in the same proportion as the total
net proceeds from the Transaction (before deducting expenses) bear to the total
compensation received by the Placement Agent hereunder, in each case as set
forth in the table in the cover page of the Memorandum. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, or by the Placement Agent, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, expenses or liabilities (or
actions in respect thereof) referred to above in this subdivision (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subdivision (d) the
Placement Agent shall not be required to contribute any amount in excess of the
compensation received by the Placement Agent hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 6,
each person, if any, who controls the Company within the meaning of the Act,
each officer of the Company and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to this subparagraph
(d), Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
to which a claim for contribution may be made against another party or parties
under this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have hereunder or otherwise than under this
subparagraph (d), or to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may have at common
law or otherwise.
7.
Relationship
Created. Placement Agent is an independent contractor and shall have
control over the manner and means of performing the services under this
Agreement. During the term of the Agreement, the Company agrees that
Placement Agent may appoint in its sole discretion or otherwise designate
suitable employees, agents, or representatives to assist Placement Agent with
performing services hereunder.
8. Public
Announcements. Neither Placement Agent nor the Company shall have the
right to place announcements and advertisements in financial and other
newspapers and journals, describing the services of Placement Agent in the
Transaction, unless the party has first obtained the consent of the other, which
consent shall not be unreasonably withheld.
9. Complete
Agreement; Severability; Amendments; Assignment; Captions; Counterparts.
This Agreement embodies the entire agreement and understanding between the
parties hereto and supersedes any prior agreements and understandings relating
to the subject matter hereof. If any provision of this Agreement is
determined to be invalid or unenforceable in any respect, such determination
will not affect such provision in any other respect or any other provision of
this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except by an
instrument in writing signed by both Placement Agent and the Company. This
Agreement may not be assigned by either party without the prior written consent
of the other party. The captions in this Agreement are used for convenience only
and shall not be considered in interpreting this Agreement.
This Agreement may be executed in
counterparts and by facsimile transmission, all of which together should
constitute a binding agreement between Placement Agent and the
Company.
This Agreement shall be binding upon
and inure to the benefit of the Company, Placement Agent, each Indemnified
Person (as defined in Schedule I hereto) and their respective successors and
assigns.
10. Scope of
Responsibility. Neither Placement Agent nor any Indemnified Person shall
be liable to the Company, or to any other person claiming through the Company,
for any claim, loss, damage, liability, cost or expense suffered by the Company,
or any such other person, arising out of or relating to this engagement, except
for a claim that arises primarily out of, or is based primarily upon, any action
or failure to act by Placement Agent that constitutes willful misconduct on the
part of Placement Agent, but not an action or failure to act undertaken at the
request or with the consent of the Company. Notwithstanding anything
to the contrary contained in this Agreement, the Company agrees that (a) neither
Placement Agent nor any Indemnified Person shall, regardless of the legal theory
advanced, be liable for any consequential, indirect, incidental or special
damages of any nature, and (b) in no event shall Placement Agent and/or any
Indemnified Person be liable in the aggregate to the Company, or any person
claiming through the Company, for any amount which exceeds the cash fees
actually received by Placement Agent pursuant to this Agreement.
11. Governing
Law; Forum. Placement Agent and the Company agree that the obligations of
each of the parties are solely corporate obligations, and that no officer,
director, employee, agent, or shareholder of either party shall be subjected to
any personal liability whatsoever to any person; nor will any claim for
liability or suit be asserted by, or on behalf of, either Placement Agent or the
Company. The Agreement shall be governed by the laws of the State of New York
without regard to conflict of laws principles that might require the application
of the laws of another jurisdiction, and shall be binding upon and shall inure
to the benefit of the parties hereto and their respective representatives,
successors and assigns; provided that neither Buyer nor Seller may assign all or
any part of this Agreement without the prior written consent of the
other. Any dispute, action, suit, or proceeding arising out of, based
on, or in connection with this Agreement, may be brought only in the federal and
state courts of the State and County of New York, and each party covenants,
waives and agrees not to assert by way of motion, as a defense, or otherwise, in
any such dispute, action, suit, or proceeding, any claim that it is not subject
personally to the jurisdiction of such courts if it has been duly served with
process, that its property is exempt or immune from attachment or execution,
that the dispute, action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the dispute, action, suit, or proceeding is improper,
or that this Agreement or the subject matter hereof may not be enforced in or by
any such courts. Each party hereto consents to the personal
jurisdiction of each such court and to the service of process by mail at its
address to which notices are to be sent under Section 12 in
connection with any such dispute, action, suit or proceeding.
12. Notices.
All notices or communications hereunder will be in writing and mailed or
delivered as follows:
If to Placement Agent:
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If
to the Company:
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Xxxxx
X. Xxxxxxxx, CEO
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Xxxxx
World Trade, Ltd.
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000-00
000xx Xxxxxx
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Xxxxxxx,
Xxx Xxxx 00000
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Phone: (000)
000-0000 xxx.0000
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Fax:
(000) 000-0000
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with
a copy to:
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Xxxxxxx
X. Xxxxx, Esq.
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Scheichet
& Xxxxx, P.C.
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000
Xxxxx Xxxxxx – 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Phone:
(212) 688-3200 ext. 414
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Fax:
(000) 000-0000
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(Signature
Page Follows)
Please
confirm that the foregoing correctly sets forth our agreement by signing,
dating, and returning to Placement Agent the enclosed copy of this Agreement by
mail, email or fax to _________________.
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Very Truly Yours,
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Placement Agent
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By:
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Date:
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CEO
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AGREED
AND ACCEPTED:
XXXXX
WORD TRADE, LTD.
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By:
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Xxxxx
X. Xxxxxxxx, Chief Executive
Officer
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