EXHIBIT 10.32
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SPEECHSWITCH, INC.
AMENDED AND RESTATED PLACEMENT AGENT AGREEMENT
Dated as of: December 12, 2005
Monitor Capital Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Ladies and Gentlemen:
The undersigned, SpeechSwitch, Inc., a New Jersey corporation (the
"Company"), hereby agrees with Monitor Capital, Inc. (the "Placement Agent") and
Cornell Capital Partners, LP, a Delaware Limited Partnership (the "Investor"),
as follows:
1. Offering. This Agreement shall amend and restate the Placement Agent
Agreement dated August 31, 2005 (the "Original Agreement") by and among the
parties hereto. Effective as of August 31, 2005, the Company engaged the
Placement Agent to act as its exclusive placement agent in connection with the
Standby Equity Distribution Agreement August 31, 2005 (as amended, amended and
restated or otherwise modified in writing, the "Standby Equity Distribution
Agreement"), pursuant to which the Company shall issue and sell to the Investor,
from time to time, and the Investor shall purchase from the Company (the
"Offering") up to Ten Million Dollars ($10,000,000) of the Company's Class A
common stock (the "Commitment Amount"), no par value per share (the "Common
Stock"), at price per share equal to the Purchase Price, as that term is defined
in the Standby Equity Distribution Agreement. The Placement Agent services shall
consist of reviewing the terms of the Standby Equity Distribution Agreement and
advising the Company with respect to those terms.
All capitalized terms used herein and not otherwise defined herein
shall have the same meaning ascribed to them as in the Standby Equity
Distribution Agreement. The Investor will be granted certain registration rights
with respect to the Common Stock as more fully set forth in the Registration
Rights Agreement between the Company and the Investor dated the date hereof (the
"Registration Rights Agreement"). The documents to be executed and delivered in
connection with the Offering, including, but not limited, to the Company's
latest Quarterly Report on Form 10-QSB as filed with the United States
Securities and Exchange Commission, this Agreement, the Standby Equity
Distribution Agreement and the Registration Rights Agreement are referred to
sometimes hereinafter collectively as the "Offering Materials." The Company's
Common Stock purchased by the Investor hereunder is sometimes referred to
hereinafter as the "Securities." The Placement Agent shall not be obligated to
sell any Securities.
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2. Compensation. On the date hereof, the Company shall issue to the
Placement Agent or its designee shares of the Company's Common Stock in an
amount equal to Ten Thousand Dollars ($10,000) divided by the lowest closing bid
price of the Company's Common Stock, as quoted by Bloomberg, LP, on the fifth
(5th) Trading Day of the Company's Common Stock once it is listed on a Principal
Market, as such term is defined in the Standby Equity Distribution Agreement of
even date hereof (the "Placement Agent's Shares"). The Placement Agent shall be
entitled to "piggy-back" registration rights with respect to the Placement
Agent's Shares, which shall be triggered upon registration of any shares of
Common Stock by the Company pursuant to the Registration Rights Agreement dated
the date hereof.
3. Representations, Warranties and Covenants of the Placement Agent.
A. The Placement Agent represents, warrants and covenants as
follows:
(i) The Placement Agent has the necessary power to
enter into this Agreement and to consummate the transactions contemplated
hereby.
(ii) The execution and delivery by the Placement
Agent of this Agreement and the consummation of the transactions contemplated
herein will not result in any violation of, or be in conflict with, or
constitute a default under, any agreement or instrument to which the Placement
Agent is a party or by which the Placement Agent or its properties are bound, or
any judgment, decree, order or, to the Placement Agent's knowledge, any statute,
rule or regulation applicable to the Placement Agent. This Agreement when
executed and delivered by the Placement Agent, will constitute the legal, valid
and binding obligations of the Placement Agent, enforceable in accordance with
their respective terms, except to the extent that (a) the enforceability hereof
or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws from time to time in effect and affecting the rights of
creditors generally, (b) the enforceability hereof or thereof is subject to
general principles of equity, or (c) the indemnification provisions hereof or
thereof may be held to be in violation of public policy.
(iii) Upon receipt and execution of this Agreement,
the Placement Agent will promptly forward copies of this Agreement to the
Company or its counsel and the Investor or its counsel.
(iv) The Placement Agent will not intentionally take
any action that it reasonably believes would cause the Offering to violate the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934 (the "Exchange Act"), the respective rules and
regulations promulgated thereunder (the "Rules and Regulations") or applicable
"Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent is a member of the National
Association of Securities Dealers, Inc., and is a broker-dealer registered as
such under the Exchange Act and under the securities laws of the states in which
the Securities will be offered or sold by the Placement Agent unless an
exemption for such state registration is available to the Placement Agent. The
Placement Agent is in material compliance with the rules and regulations
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applicable to the Placement Agent generally and applicable to the Placement
Agent's participation in the Offering.
4. Representations, Warranties and Covenants of the Company.
A. The Company represents, warrants and covenants as follows:
(i) The execution, delivery and performance of each
of this Agreement, the Standby Equity Distribution Agreement and the
Registration Rights Agreement have been or will be duly and validly authorized
by the Company and is, or with respect to this Agreement, the Standby Equity
Distribution Agreement and the Registration Rights Agreement, will be a valid
and binding agreement of the Company, enforceable in accordance with its
respective terms, except to the extent that (a) the enforceability hereof or
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect and affecting the rights of creditors
generally, (b) the enforceability hereof or thereof is subject to general
principles of equity or (c) the indemnification provisions hereof or thereof may
be held to be in violation of public policy. The Securities to be issued
pursuant to the transactions contemplated by this Agreement and the Standby
Equity Distribution Agreement have been duly authorized and, when issued and
paid for in accordance with this Agreement, the Standby Equity Distribution
Agreement and the certificates/instruments representing such Securities, will be
valid and binding obligations of the Company, enforceable in accordance with
their respective terms, except to the extent that (1) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect and affecting the rights of creditors
generally, and (2) the enforceability thereof is subject to general principles
of equity. All corporate action required to be taken for the authorization,
issuance and sale of the Securities has been duly and validly taken by the
Company.
(ii) The Company has a duly authorized, issued and
outstanding capitalization as set forth herein and in the Standby Equity
Distribution Agreement. The Company is not a party to or bound by any
instrument, agreement or other arrangement providing for it to issue any capital
stock, rights, warrants, options or other securities, except for this Agreement,
the agreements described herein and as described in the Standby Equity
Distribution Agreement, dated the date hereof and the agreements described
therein. All issued and outstanding securities of the Company, have been duly
authorized and validly issued and are fully paid and non-assessable; the holders
thereof have no rights of rescission or preemptive rights with respect thereto
and are not subject to personal liability solely by reason of being security
holders; and none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company.
(iii) The Common Stock to be issued in accordance
with this Agreement and the Standby Equity Distribution Agreement has been duly
authorized and, when issued and paid for in accordance with this Agreement and
the Standby Equity Distribution Agreement, the certificates/instruments
representing such Common Stock will be validly issued, fully-paid and
non-assessable; the holders thereof will not be subject to personal liability
solely by reason of being such holders; such Securities are not and will not be
subject to the preemptive rights of any holder of any security of the Company.
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(iv) The Company has good and marketable title to, or
valid and enforceable leasehold estates in, all items of real and personal
property necessary to conduct its business (including, without limitation, any
real or personal property stated in the Offering Materials to be owned or leased
by the Company), free and clear of all liens, encumbrances, claims, security
interests and defects of any material nature whatsoever, other than those set
forth in the Offering Materials and liens for taxes not yet due and payable.
(v) There is no litigation or governmental proceeding
pending or, to the best of the Company's knowledge, threatened against, or
involving the properties or business of the Company, except as set forth in the
Offering Materials.
(vi) The Company has been duly organized and validly
exists as a corporation in good standing under the laws of the State of New
Jersey. Except as set forth in the Offering Materials, the Company does not own
or control, directly or indirectly, an interest in any other corporation,
partnership, trust, joint venture or other business entity. The Company is duly
qualified or licensed and in good standing as a foreign corporation in each
jurisdiction in which the character of its operations requires such
qualification or licensing and where failure to so qualify would have a material
adverse effect on the Company. The Company has all requisite corporate power and
authority, and all material and necessary authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental regulatory
officials and bodies (domestic and foreign) to conduct its businesses (and
proposed business) as described in the Offering Materials. Any disclosures in
the Offering Materials concerning the effects of foreign, federal, state and
local regulation on the Company's businesses as currently conducted and as
contemplated are correct in all material respects and do not omit to state a
material fact. The Company has all corporate power and authority to enter into
this Agreement, the Standby Equity Distribution Agreement and the Registration
Rights Agreement to carry out the provisions and conditions hereof and thereof,
and all consents, authorizations, approvals and orders required in connection
herewith and therewith have been obtained. No consent, authorization or order
of, and no filing with, any court, government agency or other body is required
by the Company for the issuance of the Securities or execution and delivery of
the Offering Materials except for applicable federal and state securities laws.
The Company, since its inception, has not incurred any liability arising under
or as a result of the application of any of the provisions of the Securities
Act, the Exchange Act or the Rules and Regulations.
(vii) There has been no material adverse change in
the condition or prospects of the Company, financial or otherwise, from the
latest dates as of which such condition or prospects, respectively, are set
forth in the Offering Materials, and the outstanding debt, the property and the
business of the Company conform in all material respects to the descriptions
thereof contained in the Offering Materials.
(viii) Except as set forth in the Offering Materials,
the Company is not in breach of, or in default under, any term or provision of
any material indenture, mortgage, deed of trust, lease, note, loan or Standby
Equity Distribution Agreement or any other material agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or
instrument to which it is a party or by which it or any of its properties may be
bound or affected. The Company is not in violation of any provision of its
charter or by-laws or in violation of any franchise, license, permit, judgment,
decree or order, or in violation of any
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material statute, rule or regulation. Neither the execution and delivery of the
Offering Materials nor the issuance and sale or delivery of the Securities, nor
the consummation of any of the transactions contemplated in the Offering
Materials nor the compliance by the Company with the terms and provisions hereof
or thereof, has conflicted with or will conflict with, or has resulted in or
will result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or pursuant to the terms of any indenture,
mortgage, deed of trust, note, loan or any other agreement or instrument
evidencing an obligation for borrowed money, or any other agreement or
instrument to which the Company may be bound or to which any of the property or
assets of the Company is subject except (a) where such default, lien, charge or
encumbrance would not have a material adverse effect on the Company and (b) as
described in the Offering Materials; nor will such action result in any
violation of the provisions of the charter or the by-laws of the Company or,
assuming the due performance by the Placement Agent of its obligations
hereunder, any material statute or any material order, rule or regulation
applicable to the Company of any court or of any foreign, federal, state or
other regulatory authority or other government body having jurisdiction over the
Company.
(ix) Subsequent to the dates as of which information
is given in the Offering Materials, and except as may otherwise be indicated or
contemplated herein or therein, the Company has not (a) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed money,
or (b) entered into any transaction other than in the ordinary course of
business, or (c) declared or paid any dividend or made any other distribution on
or in respect of its capital stock. Except as described in the Offering
Materials, the Company has no outstanding obligations to any officer or director
of the Company.
(x) There are no claims for services in the nature of
a finder's or origination fee with respect to the sale of the Common Stock or
any other arrangements, agreements or understandings that may affect the
Placement Agent's compensation, as determined by the National Association of
Securities Dealers, Inc.
(xi) The Company owns or possesses, free and clear of
all liens or encumbrances and rights thereto or therein by third parties, the
requisite licenses or other rights to use all trademarks, service marks,
copyrights, service names, trade names, patents, patent applications and
licenses necessary to conduct its business (including, without limitation, any
such licenses or rights described in the Offering Materials as being owned or
possessed by the Company) and, except as set forth in the Offering Materials,
there is no claim or action by any person pertaining to, or proceeding, pending
or threatened, which challenges the exclusive rights of the Company with respect
to any trademarks, service marks, copyrights, service names, trade names,
patents, patent applications and licenses used in the conduct of the Company's
businesses (including, without limitation, any such licenses or rights described
in the Offering Materials as being owned or possessed by the Company) except any
claim or action that would not have a material adverse effect on the Company;
the Company's current products, services or processes do not infringe or will
not infringe on the patents currently held by any third party.
(xii) Except as described in the Offering Materials,
the Company is not under any obligation to pay royalties or fees of any kind
whatsoever to any third party with
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respect to any trademarks, service marks, copyrights, service names, trade
names, patents, patent applications, licenses or technology it has developed,
uses, employs or intends to use or employ, other than to their respective
licensors.
(xiii) Subject to the performance by the Placement
Agent of its obligations hereunder the offer and sale of the Securities
complies, and will continue to comply, in all material respects with the
requirements of Rule 506 of Regulation D promulgated by the SEC pursuant to the
Securities Act and any other applicable federal and state laws, rules,
regulations and executive orders. Neither the Offering Materials nor any
amendment or supplement thereto nor any documents prepared by the Company in
connection with the Offering will 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. All statements of material facts in the
Offering Materials are true and correct as of the date of the Offering
Materials.
(xiv) All material taxes which are due and payable
from the Company have been paid in full or adequate provision has been made for
such taxes on the books of the Company, except for those taxes disputed in good
faith by the Company
(xv) None of the Company nor any of its officers,
directors, employees or agents, nor any other person acting on behalf of the
Company, has, directly or indirectly, given or agreed to give any money, gift or
similar benefit (other than legal price concessions to customers in the ordinary
course of business) to any customer, supplier, employee or agent of a customer
or supplier, or official or employee of any governmental agency or
instrumentality of any government (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or other person who is or may be
in a position to help or hinder the business of the Company (or assist it in
connection with any actual or proposed transaction) which (A) might subject the
Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, or (B) if not given in the past, might have had a
materially adverse effect on the assets, business or operations of the Company
as reflected in any of the financial statements contained in the Offering
Materials, or (C) if not continued in the future, might adversely affect the
assets, business, operations or prospects of the Company in the future.
(xvi) The Company shall advise the Placement Agent
and the Investor of any material adverse change in the Company's financial
condition, prospects or business or of any development materially affecting the
Company or rendering untrue or misleading any material statement in the Offering
Materials occurring at any time as soon as the Company is either informed or
becomes aware thereof.
(xvii) The Company shall use its commercially
reasonable efforts to cause the Common Stock issuable in connection with the
Standby Equity Distribution Agreement to be qualified or registered for sale on
terms consistent with those stated in the Registration Rights Agreement and
under the securities laws of such jurisdictions as the Placement Agent and the
Investor shall reasonably request. Qualification, registration and exemption
charges and fees shall be at the sole cost and expense of the Company.
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(xviii) The Company shall comply with the terms of
the Offering Materials.
(xix) The Company shall ensure that any transactions
between or among the Company, or any of its officers, directors and affiliates
be on terms and conditions that are no less favorable to the Company, than the
terms and conditions that would be available in an "arm's length" transaction
with an independent third party.
(xx) Upon the effectiveness of a registration
statement covering the Standby Equity Distribution Agreement, the Company shall
deliver to the Investor and the Placement Agent an opinion from counsel to the
Company, dated as of the date thereof, which opinion shall be in form and
substance reasonably satisfactory to the Investor, their counsel and the
Placement Agent.
(xxi) The Company shall furnish to the Investor and
the Placement Agent such documents, certificates and opinions as it may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and the Offering Materials, or in order to
evidence the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained.
5. Representations, Warranties and Covenants of the Investor.
A. The Investor represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter
into this Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Investor of
this Agreement and the consummation of the transactions contemplated herein will
not result in any violation of, or be in conflict with, or constitute a default
under, any agreement or instrument to which the Investor is a party or by which
the Investor or its properties are bound, or any judgment, decree, order or, to
the Investor's knowledge, any statute, rule or regulation applicable to the
Investor. This Agreement when executed and delivered by the Investor, will
constitute the legal, valid and binding obligations of the Investor, enforceable
in accordance with their respective terms, except to the extent that (a) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally, (b) the enforceability hereof or
thereof is subject to general principles of equity, or (c) the indemnification
provisions hereof or thereof may be held to be in violation of public policy.
(iii) The Investor will promptly forward copies of
any and all due diligence questionnaires compiled by the Investor to the
Placement Agent.
(iv) The Investor is an Accredited Investor (as
defined under the Securities Act).
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(v) The Investor is acquiring the Securities for the
Investor's own account as principal, not as a nominee or agent, for investment
purposes only, and not with a view to, or for, resale, distribution or
fractionalization thereof in whole or in part and no other person has a direct
or indirect beneficial interest in such Securities. Further, the Investor does
not have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to any of the Securities.
(vi) The Investor acknowledges the Investor's
understanding that the offering and sale of the Securities is intended to be
exempt from registration under the Securities Act by virtue of Section 3(b) of
the Securities Act and the provisions of Regulation D promulgated thereunder
("Regulation D"). In furtherance thereof, the Investor represents and warrants
as follows:
(a) The Investor has the financial ability to bear
the economic risk of the Investor's investment, has adequate means for providing
for the Inventor's current needs and personal contingencies and has no need for
liquidity with respect to the Investor's investment in the Company; and
(b) The Investor has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of the prospective investment. The Investor also represents it has not
been organized for the purpose of acquiring the Securities.
(vii) The Investor has been given the opportunity for
a reasonable time prior to the date hereof to ask questions of, and receive
answers from, the Company or its representatives concerning the terms and
conditions of the Offering, and other matters pertaining to this investment, and
has been given the opportunity for a reasonable time prior to the date hereof to
obtain such additional information in connection with the Company in order for
the Investor to evaluate the merits and risks of purchase of the Securities, to
the extent the Company possesses such information or can acquire it without
unreasonable effort or expense. The Investor is not relying on the Placement
Agent or any of its affiliates with respect to the accuracy or completeness of
the Offering Materials or for any economic considerations involved in this
investment.
6. Indemnification and Limitation of Liability.
A. The Company hereby agrees that it will indemnify and hold
the Placement Agent and each officer, director, shareholder, employee or
representative of the Placement Agent and each person controlling, controlled by
or under common control with the Placement Agent within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or the SEC's Rules
and Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any and
all reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any action, suit
or proceeding, including any inquiry or investigation, commenced or threatened,
or any claim whatsoever or in appearing or preparing for appearance as a witness
in any action, suit or proceeding, including any inquiry, investigation or
pretrial proceeding such as a deposition) to which the Placement Agent or such
indemnified person of
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the Placement Agent may become subject under the Securities Act, the Exchange
Act, the Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in (a) Section 4 of
this Agreement, (b) the Offering Materials (except those written statements
relating to the Placement Agent given by the Placement Agent for inclusion
therein), (c) any application or other document or written communication
executed by the Company or based upon written information furnished by the
Company filed in any jurisdiction in order to qualify the Common Stock under the
securities laws thereof, or any state securities commission or agency; (ii) the
omission or alleged omission from documents described in clauses (a), (b) or (c)
above of a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (iii) the breach of any representation,
warranty, covenant or agreement made by the Company in this Agreement. The
Company further agrees that upon demand by an indemnified person, at any time or
from time to time, it will promptly reimburse such indemnified person for any
loss, claim, damage, liability, cost or expense actually and reasonably paid by
the indemnified person as to which the Company has indemnified such person
pursuant hereto. Notwithstanding the foregoing provisions of this Paragraph
7(A), any such payment or reimbursement by the Company of fees, expenses or
disbursements incurred by an indemnified person in any proceeding in which a
final judgment by a court of competent jurisdiction (after all appeals or the
expiration of time to appeal) is entered against the Placement Agent or such
indemnified person based upon specific finding of fact that the Placement Agent
or such indemnified person's gross negligence or willful misfeasance will be
promptly repaid to the Company.
B. The Placement Agent hereby agrees that it will indemnify
and hold the Company and each officer, director, shareholder, employee or
representative of the Company, and each person controlling, controlled by or
under common control with the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or the Rules and Regulations,
harmless from and against any and all loss, claim, damage, liability, cost or
expense whatsoever (including, but not limited to, any and all reasonable legal
fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or proceeding,
including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any
action, suit or proceeding, including any inquiry, investigation or pretrial
proceeding such as a deposition) to which the Company or such indemnified person
of the Company may become subject under the Securities Act, the Exchange Act,
the Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) the material breach of
any representation, warranty, covenant or agreement made by the Placement Agent
in this Agreement, or (ii) any false or misleading information provided to the
Company in writing by one of the Placement Agent's indemnified persons
specifically for inclusion in the Offering Materials.
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C. The Investor hereby agrees that it will indemnify and hold
the Placement Agent and each officer, director, shareholder, employee or
representative of the Placement Agent, and each person controlling, controlled
by or under common control with the Placement Agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act or the Rules
and Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any and
all reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any action, suit
or proceeding, including any inquiry or investigation, commenced or threatened,
or any claim whatsoever or in appearing or preparing for appearance as a witness
in any action, suit or proceeding, including any inquiry, investigation or
pretrial proceeding such as a deposition) to which the Placement Agent or such
indemnified person of the Placement Agent may become subject under the
Securities Act, the Exchange Act, the Rules and Regulations, or any other
federal or state law or regulation, common law or otherwise, arising out of or
based upon (i) the conduct of the Investor or its officers, employees or
representatives in its acting as the Investor for the Offering, (ii) the
material breach of any representation, warranty, covenant or agreement made by
the Investor in the Offering Materials, or (iii) any false or misleading
information provided to the Placement Agent by one of the Investor's indemnified
persons.
D. The Placement Agent hereby agrees that it will indemnify
and hold the Investor and each officer, director, shareholder, employee or
representative of the Investor, and each person controlling, controlled by or
under common control with the Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or the Rules and Regulations,
harmless from and against any and all loss, claim, damage, liability, cost or
expense whatsoever (including, but not limited to, any and all reasonable legal
fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or proceeding,
including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any
action, suit or proceeding, including any inquiry, investigation or pretrial
proceeding such as a deposition) to which the Investor or such indemnified
person of the Investor may become subject under the Securities Act, the Exchange
Act, the Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon the material breach of any
representation, warranty, covenant or agreement made by the Placement Agent in
this Agreement.
E. Promptly after receipt by an indemnified party of notice of
commencement of any action covered by Section 7(A), (B), (C) or (D), the party
to be indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified party to
so notify the indemnifying party shall not relieve the indemnifying party of its
obligation to indemnify any other indemnified party that has given such notice
and shall not relieve the indemnifying party of any liability outside of this
indemnification if not materially prejudiced thereby. In the event that any
action is brought against the indemnified party, the indemnifying party will be
entitled to participate therein and, to the extent it may desire, to assume and
control the defense thereof with counsel chosen by it which is reasonably
acceptable to the indemnified party. After notice from the indemnifying party to
such indemnified party of its election to so assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
Section 7(A), (B),
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(C), or (D) for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, but the indemnified
party may, at its own expense, participate in such defense by counsel chosen by
it, without, however, impairing the indemnifying party's control of the defense.
Subject to the proviso of this sentence and notwithstanding any other statement
to the contrary contained herein, the indemnified party or parties shall have
the right to choose its or their own counsel and control the defense of any
action, all at the expense of the indemnifying party if (i) the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action at the expense of the indemnifying
party, or (ii) the indemnifying party 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 party; provided, however, that the indemnifying party shall
not, in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstance, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties. No settlement of any action or proceeding against an indemnified party
shall be made without the consent of the indemnifying party.
F. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7(A) or 7(B)
is due in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the Placement
Agent shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with the
investigation or defense of same) which the other may incur in such proportion
so that the Placement Agent shall be responsible for such percent of the
aggregate of such losses, claims, damages and liabilities as shall equal the
percentage of the gross proceeds paid to the Placement Agent and the Company
shall be responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation within the meaning of Section 11(f) of the
Securities Act shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(F),
any person controlling, controlled by or under common control with the Placement
Agent, or any partner, director, officer, employee, representative or any agent
of any thereof, shall have the same rights to contribution as the Placement
Agent and each person controlling, controlled by or under common control with
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and each officer of the Company and each director of the
Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against the other party under this Section 7(D),
notify such party from whom contribution may be sought, but the omission to so
notify such party shall not relieve the party from whom contribution may be
sought from any obligation they may have hereunder or otherwise if the party
from whom contribution may be sought is not materially prejudiced thereby.
G. The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified person or any termination
of this Agreement.
H. The Company hereby waives, to the fullest extent permitted
by law, any right to or claim of any punitive, exemplary, incidental, indirect,
special, consequential or other damages (including, without limitation, loss of
profits) against the Placement Agent and each officer, director, shareholder,
employee or representative of the placement agent and each person controlling,
controlled by or under common control with the Placement Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or
the Rules and Regulations arising out of any cause whatsoever (whether such
cause be based in contract, negligence, strict liability, other tort or
otherwise). Notwithstanding anything to the contrary contained herein, the
aggregate liability of the Placement Agent and each officer, director,
shareholder, employee or representative of the Placement Agent and each person
controlling, controlled by or under common control with the Placement Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act or the Rules and Regulations shall not exceed the compensation
received by the Placement Agent pursuant to Section 2 hereof. This limitation of
liability shall apply regardless of the cause of action, whether contract, tort
(including, without limitation, negligence) or breach of statute or any other
legal or equitable obligation.
7. Payment of Expenses.
The Company hereby agrees to bear all of the expenses in connection
with the Offering, including, but not limited to the following: filing fees,
printing and duplicating costs, advertisements, postage and mailing expenses
with respect to the transmission of Offering Materials, registrar and transfer
agent fees and the fees of the Company's counsel and accountants, issue and
transfer taxes, if any.
8. Termination.
This Agreement shall be co-terminus with, and terminate upon the same
terms and conditions as those set forth in, the Standby Equity Distribution
Agreement. The rights of the Investor and the obligations of the Company under
the Registration Rights Agreement, and the rights of the Placement Agent and the
obligations of the Company shall survive the termination of this Agreement
unabridged.
9. Miscellaneous.
A. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all which
shall be deemed to be one and the same instrument.
B. Any notice required or permitted to be given hereunder
shall be given in writing and shall be deemed effective when deposited in the
United States mail, postage prepaid, or when received if personally delivered or
faxed (upon confirmation of receipt received by the sending party), addressed as
follows to such other address of which written notice is given to the others):
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If to Placement Agent, to: Monitor Capital Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Hsiao-Xxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, to: SpeechSwitch, Inc.
000 Xxxxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Meritz & Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Investor: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
C. This Agreement shall be governed by and construed in all
respects under the laws of the State of New Jersey, without reference to its
conflict of laws rules or principles. Any suit, action, proceeding or litigation
arising out of or relating to this Agreement shall be brought and prosecuted in
such federal or state court or courts located within the State of New Jersey as
provided by law. The parties hereby irrevocably and unconditionally consent to
the jurisdiction of each such court or courts located within the State of New
Jersey and to service of process by registered or certified mail, return receipt
requested, or by any other manner provided by applicable law, and hereby
irrevocably and unconditionally waive any right to claim that any suit, action,
proceeding or litigation so commenced has been commenced in an inconvenient
forum.
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D. This Agreement and the other agreements referenced herein
contain the entire understanding between the parties hereto and may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
E. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY:
SPEECHSWITCH, INC.
By: _______________________
Name: Xxxxx Xxxx
Title: CEO
PLACEMENT AGENT:
MONITOR CAPITAL INC.
By: _______________________
Name: Hsiao-Xxx Xxx
Title: President
INVESTOR:
CORNELL CAPITAL PARTNERS, LP
BY: YORKVILLE ADVISORS, LLC
ITS: GENERAL PARTNER
By: _______________________
Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
15
