PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("Agreement"), made as of the 17th day of March, 1999 by
and between Euroweb International Corp., a Delaware corporation ("Company"), and
X.X. Xxxxx Securities, Inc., a Georgia corporation (the "Agent").
WITNESSETH:
WHEREAS, the Company proposes to issue and sell up to $800,000 of its
shares of common stock, par value $0.001, in an offering (the "Offering") not
involving a public offering without registration under the Securities Act of
1933, as amended (the "Act"), pursuant to exemptions from the registration
requirements of the Act under Regulation D promulgated under the Act
("Regulation D"), as described below; and
WHEREAS, the Agent has offered to assist the Company in placing the
Securities on a "best efforts," basis with and the Company desires to secure the
services of the Agent on the terms and conditions hereinafter set forth;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises, conditions and covenants herein contained, the parties hereto do
hereby agree as follows:
1. Engagement of Agent. The Company hereby appoints the Agent as its
exclusive placement agent for the Offering, to sell up to $800,000 of Securities
in a series of tranches on a "best efforts" basis. resulting in gross proceeds
to the Company of a maximum of $800,000. The Shares are to be offered based upon
a price of $1.3125 per share. The Agent, on the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, accepts such appointment and agrees to use its best efforts to find
purchasers for the Securities. This appointment shall be irrevocable for the
period commencing on March 17, 1999, and ending as further described in Section
5 herein, which period maybe extended by the consent of the Company and the
Agent (the "Offering Period").
2. Representations and Warranties of the Company. In order to induce
the Agent to enter into this Agreement, the Company hereby represents and
warrants to and agrees with the Agent as follows:
2.1 Offering Documents. The Company and the Placement Agent have
prepared a Securities Purchase Agreement, certain exhibits thereto, and
Registration Rights Agreement regarding the Securities, which documents have
been or will be sent to proposed investors. In addition, proposed investors have
received or will receive prior to closing copies of the Company's Annual Report
on Form 10-KSB for the period ended December 31, 1997, and other documents that
were subsequently filed with the SEC ("SEC Documents"). The SEC Documents were
prepared in conformity with the requirements (to the extent applicable) of the
Securities and Exchange Act of 1934, as amended, and the rules and regulations
("Rules and Regulations") of the Commission promulgated thereunder. As used in
this Agreement, the term
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"Offering Documents" refers to and means the SEC Documents, the Subscription
Agreement and all amendments, exhibits and supplements thereto, together with
any other documents which are provided to the Agent by, or approved for Agent's
use by, the Company for the purpose of this Offering.
2.2 Provision of Offering Documents. The Company shall deliver to the
Agent, without charge, as many copies of the Offering Documents as the Agent may
reasonably require for the purposes contemplated by this Agreement. The Company
authorizes the Agent, in connection with the Offering of the Securities, to use
the Offering Documents as from time to time amended or supplemented in
connection with the offering and sale of the Securities and in accordance with
the applicable provisions of the Act and Regulation D. The Company consents to
the Agent's distribution of the Offering Documents to prospective subscribers as
a disclosure document about the Company, its business, prospects, financial
condition and other matters.
2.3 Accuracy of Offering Documents. Taken together, the Offering
Documents, at the time of delivery to subscribers for the Securities, conformed
in all material respects with the requirements, to the extent applicable, of the
Act and the applicable Rules and Regulations and did not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. On the Closing Date
(as hereinafter defined), the Offering Documents, taken together, will contain
all statements which are required to be stated therein in accordance with the
Act and the Rules and Regulations for the purposes of the proposed Offering, and
all statements of material fact contained in the Offering Documents will be true
and correct, and the Offering Documents will not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Company does
not make any representations or warranties as to the information contained in or
omitted from the Offering Documents in reliance upon written information
furnished on behalf of the Agent specifically for use therein.
2.4 Duty to Amend. If during such period of time, as in the opinion of
the Agent or its counsel, any Offering Documents relating to this Offering are
required to be delivered under the Act, any event occurs, or any event known to
the Company relating to or affecting the Company shall occur as a result of
which the Offering Documents as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if it is necessary at any time after
the date hereof to amend or supplement the Offering Documents to comply with the
Act or the applicable Rules and Regulations, the Company shall forthwith notify
the Agent thereof and shall prepare such further amendment or supplement to the
Offering Documents as may be required and shall furnish and deliver to the Agent
and to others, whose names and addresses are designated by the Agent, all at the
cost of the Company, a reasonable number of copies of the amendment or
supplement or of the amended or supplemented Offering
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Documents which, as so amended or supplemented, will not contain an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the Offering Documents not misleading in the light of the
circumstances when it is delivered to a purchaser or prospective purchaser, and
which will comply in all respects with the requirements (to the extent
applicable) of the Act and the applicable Rules and Regulations.
2.5 Corporation Condition. The Company's condition is as described in
its Offering Documents, except for changes in the ordinary course of business
and normal year-end adjustments that are not in the aggregate materially adverse
to the Company. The Offering Documents, taken as a whole, present fairly the
business and financial position of the Company as of the Closing Date.
2.6 No Material Adverse Change. Except as may be reflected in or
contemplated by the Offering Documents, subsequent to the dates as of which
information is given in the Offering Documents, and prior to the Closing Date,
there shall not have been any material adverse change in the condition,
financial or otherwise, or in the results of operations of the Company or in its
business taken as a whole.
2.7 No Defaults. Except as disclosed in the Offering Documents or in
writing to the Agent, the Company is not in default in any material respect in
the performance of any obligation, agreement or condition contained in any
material debenture, note or other evidence of indebtedness or any material
indenture or loan agreement of the Company. The execution and delivery of this
Agreement, and the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement will not conflict with or result in
a breach of any of the terms, conditions or provisions of, or constitute a
default under, the Articles of Incorporation or By-Laws of the Company (in any
respect that is material to the Company), any material note, indenture,
mortgage, deed of trust, or other agreement or instrument to which the Company
is a party or by which the Company or any property of the Company is bound, or
to the Company's knowledge, any existing law, order, rule, regulation, writ,
injunction or decree of any government, governmental instrumentality, agency or
body, arbitration tribunal or court, domestic or foreign, having jurisdiction
over the Company or any property of the Company. The consent, approval,
authorization or order of any court or governmental instrumentality, agency or
body is not required for the consummation of the transactions herein
contemplated except such as may be required under the Act or under the Blue Sky
or securities laws of any state or jurisdiction.
2.8 Incorporation and Standing. The Company is, and at the Closing Date
will be, duly formed and validly existing in good standing as a corporation
under the laws of the State of Delaware and with full power and authority
(corporate and other) to own its properties and conduct its business, present
and proposed, as described in the Offering Documents; the Company, has full
power and authority to enter into this Agreement; and the Company is duly
qualified and in good standing as a foreign entity in each jurisdiction in which
the failure to so qualify would have a material adverse effect on the Company or
its properties.
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2.9 Legality of Outstanding Securities. Prior to the Closing Date, the
outstanding securities of the Company have been duly and validly authorized and
issued, fully paid and nonassessable and conform in all material respects to the
statements with regard thereto contained in the Offering Documents.
2.10 Legality of Securities. The Securities, when sold and delivered,
will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with the terms thereof, and shall be duly and validly issued and
outstanding, fully paid and nonassessable.
2.11 Litigation. Except as set forth in the Offering Documents, there
is now, and at the Closing Date there will be, no action, suit or proceeding
before any court or governmental agency, authority or body pending or, to the
knowledge of the Company, threatened, which might result in judgements against
the Company not adequately covered by insurance or which collectively might
result in any material adverse change in the condition (financial or otherwise)
or business of the Company or which would materially adversely affect the
properties or assets of the Company.
2.12 Finders. The Company does not know of any outstanding claims for
services in the nature of a finder's fee or origination fees with respect to the
sale of the Securities hereunder for which the Agent may be responsible.
2.13 Tax Returns. The Company has filed all federal and state tax
returns which are required to be filed, and has paid all taxes shown on such
returns and on all assessments received by it to the extent such taxes have
become due. All taxes with respect to which the Company is obligated have been
paid or adequate accruals have been set up to cover any such unpaid taxes.
2.14 Authority. The execution and delivery by the Company of this
Agreement have been duly authorized by all necessary action, and this Agreement
is the valid, binding and legally enforceable obligation of the Company subject
to standard qualifications as to the availability of equitable remedies, the
effect of bankruptcy and other laws relating to the protection of debtors and
public policy opinions promulgated by the Commission with respect to
indemnification against liabilities under the Act.
2.15 Actions by the Company. The Company will not take any action which
will impair the effectiveness of the transactions contemplated by this
Agreement.
3. Issue, Sale and Delivery of the Securities.
3.1 Deliveries of Securities. Certificates in such form that, subject
to applicable transfer restrictions as described in the Subscription Agreement,
they can be negotiated by the purchasers thereof (issued in such denominations
and in such names as the Agent may direct the Company to issue) for the
Securities, and warrants representing the Agent's warrant compensation described
in Section 3.6 below
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("Warrants"), shall be delivered by the Company to the Escrow Agent, with copies
made available to the Agent for checking at least one (1) full business day
prior to the Closing Date, it being understood that the directions from the
Agent to the Company shall be given at least two (2) full business days prior to
the Closing Date. The certificates for the Securities and the Warrants shall be
delivered at the Closing and at each Subsequent Closing (as defined
hereinafter).
3.2 Escrow of Funds. Pursuant to the Escrow Agreement, a copy of which
is attached hereto as Exhibit "A" (the "Escrow Agreement"), executed by the
Company, the Agent and the escrow agent (the "Escrow Agent"), the subscribers
shall place all funds for purchase of Securities for each Closing in an escrow
account. The Company shall have the right to approve or object the subscriptions
of each subscriber, as described in the Subscription Agreement prior to each
closing. At such time as subscribers, subscribing for at least $100,000 of
Securities, have delivered to the Escrow Agent their signed subscription
documents, those subscribers have been approved by the Company, and all other
Closing conditions have been met, Escrow Agent shall release the subscription
funds and signed documents to the Company and release the certificates
representing the Securities to the subscribers (the "Initial Closing"). In the
event that the Initial Closing shall be for an amount of Securities less than
$800,000, the Offering may be continued, and additional Closings may be held
(each a "Subsequent Closing") throughout the Offering Period. In addition, the
Agent shall have the right to act as agent for the sale of additional Debentures
or Securities as set forth in Section 5 herein.
3.3 Closing Date. The Initial Closing and any Subsequent Closing shall
take place at the offices of Xxxx Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 000, 0000 Xxxxxxxxx Xxxx, XX, Xxxxxxx, Xxxxxxx 00000 at such time
and date ("Closing Date") as will be fixed either orally or in writing by notice
to be given by the Agent to the Company after consultation with the Company,
such Closing Date to be not less than one (1) full business day after the date
on which such notice shall have been given and not less than one (1)) and not
more than ten (10) full business days after the date on which the Escrow Agent
shall have given written notice to the Company and the Agent that funds
deposited with the Escrow Agent total at least $100,000. The Closing Date may be
changed by mutual agreement of the Agent and the Company.
3.4 Agent's Compensation. The Company shall pay the Agent:
(a) A commission of ten percent (10%) of the gross
subscription proceeds of the Initial Offering and any subsequent
Offerings; and
(b) In addition to the fees and reimbursement of costs set
forth in Sections 3.4 and 3.5 of this Agreement, the Company shall
issue to the Agent warrants ("Warrants") in an amount equal to 10% of
the Securities issued by the Company at an exercise price equal to 120%
of the Closing Bid Price (as defined in the Securities Purchase
Agreement). The Warrants shall have cashless
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exercise provisions. The term of the Warrant shall be five years. The
shares of Common Stock issuable upon exercise of the Warrants shall
have registration rights. The Warrants shall be delivered by the
Company to the Escrow Agent prior to each Closing, and the Escrow Agent
shall deliver to the Agent the Warrants applicable to each Closing
simultaneous with the respective Closing.
3.5 Payment of Fees. The Escrow Agent shall be instructed to pay all
fees up to $15,000 (including, but not limited to Agent's legal fees) and cost
reimbursements and Warrants pursuant to section 3.4 of this Agreement, directly
to the Agent from the proceeds of the Closing and all Subsequent Closing,
simultaneous with the transfer of proceeds to the Company.
4. Offering of the Securities on Behalf of the Company.
4.1 In offering the Securities for sale, the Agent shall offer them
solely as an agent for the Company, and such offer shall be made upon the terms
and subject to the conditions set forth in the Offering Documents. The Agent
shall commence making such offer as an agent for the Company as soon as possible
following delivery of the Offering Documents.
4.2 The Agent will not make offers to sell the Securities to, or
solicit offers to subscribe for any Securities from, persons or entities that
are not "accredited investors" as defined in Regulation D.
5. Right of First Refusal. The Company hereby grants Agent rights of
first refusal as follows:
5.1 Beginning the date hereof and ending six (6)months from the final
Closing, the Company grants to the Agent a right of first refusal to act as the
Company's exclusive placement agent for the sale of any debt or equity to be
issued by the Company ("Financing Transaction"). The Agent shall have ten (10)
business days from the date of its receipt from the Company of a detailed and
complete summary of any proposed Financing Transaction to exercise its right of
first refusal to act as Agent upon the same terms and conditions on an all or
nothing basis. In the event that the Company changes or deviates from any of the
terms of the proposed Financing Transaction contained in such written notice,
then such changes or deviation shall be deemed to constitute a new proposed
Financing Transaction and the Company shall b e required to submit a new written
right of first refusal notice to Agent and Agent shall have ten (10) business
days from the date of such notice to exercise its right of first refusal as
described herein.
5.2 The Company agrees to maintain the confidentiality of the Agent's
clients, except as required by applicable law. Such clients shall be those
entities which invest in the Offering (the "Clients"). For a period of two years
from the Closing (the "Exclusivity Period"), the Company will not solicit or
enter into any financing transaction ("Transaction") with the clients without
the written consent of Agent.
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5.3 In the event that Company breaches Section 5.1 or 5.2 of this
Agreement and engages in a Transaction with the Clients during the Exclusivity
Period, Agent shall be entitled to receive compensation in the same proportion
to the financing done without Agent's participation as the compensation to Agent
under this Agreement bears to the financing raised in this Offering.
6(a) Covenants of the Company. The Company covenants and agrees with
the Agent that:
6.1 After the date hereof, the Company will not at any time,
prepare and distribute any amendment or supplement to the Offering Documents, of
which amendment or supplement the Agent shall not previously have been advised
and the Agent and its counsel furnished with a copy within a reasonable time
period prior to the proposed adoption thereof, or to which the Agent shall have
reasonably objected in writing on the ground that it is not in compliance with
the Act or the Rules and Regulations (if applicable).
6.2 The Company will pay, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented from
becoming effective or is terminated, all actual costs and expenses incident to
the performance of its obligations under this Agreement, including all expenses
incident to the authorization of the Securities and their issue and delivery to
the Agent, any original issue taxes in connection therewith, all transfer taxes,
if any, incident to the initial sale of the Securities, the fees and expenses of
the Company's counsel (except as provided below) and accountants, the cost of
reproduction and furnishing to the Agent copies of the Offering Documents as
herein provided.
6.3 As a condition precedent to the Initial Closing, the
Company will deliver to the Agent a true and correct copy of the Articles of
Incorporation of the Company, and all amendments and certificates of designation
of preferences of preferred stock, including without limitation the certificate
of designation of preferences regarding the Securities, if applicable, certified
by the Secretary of State of Delaware.
6.4 Prior to the Closing Date, the Company will cooperate with
the Agent in such investigation as it may make or cause to be made of all of the
properties, business and operations of the Company in connection with the
Offering of the Securities. The Company will make available to it in connection
therewith such information in its possession as the Agent may reasonably request
and will make available to the Agent such persons as the Agent shall deem
reasonably necessary and appropriate in order to verify or substantiate any such
information so supplied.
6.5 The Company shall be responsible for making any and all
filings required by the Blue Sky authorities and filings required by the laws of
the jurisdictions in which the subscribers who are accepted for purchase of
Securities are located, if any. Agent shall assist Company in this respect, but
such filings shall be the responsibility of Company.
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7. Indemnification.
7.1 The Company agrees to indemnify and hold harmless the Agent, each
person who controls the Agent within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended, and the Agent's
employees, accountants, attorneys and agents (the "Agent's Indemnitees") against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act or any other statute or at
common law for any legal or other expenses (including the costs of any
investigation and preparation) incurred by them in connection with any
litigation, whether or not resulting in any liability, but only insofar as such
losses, claims, damages, liabilities and litigation arise out of or are based
upon any untrue statement of material fact contained in the Offering Documents
or any amendment or supplement thereto or any application or other document
filed in any state or jurisdiction in order to qualify the Securities under the
Blue Sky or securities laws thereof, or the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
under the circumstances under which they were made, not misleading, all as of
the date of the Offering Documents or of such amendment as the case may be;
provided, however, that the indemnity agreement contained in this Section 7.1
shall not apply to amounts paid in settlement of any such litigation, if such
settlements are made without the consent of the Company, nor shall it apply to
the Agent's Indemnitees in respect to any such losses, claims, damages or
liabilities arising out of or based upon any such untrue statement or alleged
untrue statement or any such omission or alleged omission, if such statement or
omission was made in reliance upon information furnished in writing to the
Company by the Agent specifically for use in connection with the preparation of
the Offering Documents or any such amendment or supplement thereto or any
application or other document filed in any state or jurisdiction in order to
qualify the Securities under the Blue Sky or securities law thereof. This
indemnity agreement is in addition to any other liability which the Company may
otherwise have to the Agent's Indemnitees. The Agent's Indemnitees agree, within
a reasonable time after the receipt by them of written notice of the
commencement of any action against them in respect to which indemnity may be
sought from the Company under this Section 7. 1, to notify the Company in
writing of the commencement of such action, and if the Agent's Indemnitees shall
notify the Company of the commencement thereof, the Company shall be entitled to
participate in (and, to the extent that the Company shall wish, to direct) the
defense thereof at its own expense, but such defense shall be conducted by
counsel of recognized standing and reasonably satisfactory to the Agent's
Indemnitees, defendant or defendants, in such litigation. The Company agrees to
notify the Agent's Indemnitees promptly of the commencement of any litigation or
proceedings against the Company or any of the Company's officers or directors of
which the Company may be advised in connection with the issue and sale of any of
the Securities and to furnish to the Agent's Indemnitees, at their request,
copies of all pleadings therein and o permit the Agent=s Indemnities to be
observers therein and apprise the Agent's Indemnitees of all developments
therein, all at the Company's expense.
7.2 The Agent agrees, in the same manner and to the same extent as set
forth in Section 7.1 above, to indemnify and hold harmless the Company, and the
Company's employees, accountants, attorneys
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and agents (the "Company's Indemnitees") with respect to (i) any statement in or
omission from the Offering Documents or any amendment or supplement thereto or
any application or other document filed in any state or jurisdiction in order to
qualify the Securities under the Blue Sky or securities laws thereof, or any
information furnished pursuant to Section 3.4 hereof, if such statement or
omission was made in reliance upon information furnished in writing to the
Company by the Agent or on its behalf specifically for use in connection with
the preparation thereof or supplement thereto, or (ii) any untrue statement of a
material fact made by the Agent or its agents not based on statements in the
Offering Documents or authorized in writing by the Company, or with respect to
any misleading statement made by the Agent or its agents resulting from the
omission of material facts which misleading statement is not based upon the
Offering Documents, or information furnished in writing by the Company or, (iii)
any breach of any representation, warranty or covenant made by the Agent in this
Agreement. The Agent's liability hereunder shall be limited to the amount
received by it for acting as Agent in connection with the Offerings. The Agent
shall not be liable for amounts paid in settlement of any such litigation if
such settlement was effected without its consent. In case of the commencement of
any action in respect of which indemnity may be sought from the Agent, the
Company's Indemnitees shall have the same obligation to give notice as set forth
in Section 7.1 above, subject to the same loss of indemnity in the event such
notice is not given, and the Agent shall have the same right to participate in
(and, to the extent that it shall wish, to direct) the defense of such action at
its own expense, but such defense shall be conducted by counsel of recognized
standing reasonably satisfactory to the Company. The Agent agrees to notify the
Company's Indemnitees and , at their request, to provide copies of all pleadings
therein and to permit the Company's Indemnitees to be observers therein and
apprise them of all the developments therein, all at the Agent's expense.
7.3 If for any reason the indemnity provided for in Section 7.1 or 7.2
is unavailable to an Indemnified Person or insufficient to hold an Indemnified
Person harmless, then the Indemnifying Party, to the fullest extent permitted by
law, shall contribute to the amount paid or payable by such Indemnified Person
as a result of such claims, liabilities, losses, damages or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company on one hand and by the Agent on the other, from the transaction or
proposed transaction under this Agreement or if allocation on that basis is not
permitted under applicable law, in such proportion as is appropriate to reflect
not only the relative benefits received by the Company on the one hand and the
Agent on the other, but also the relative fault of the Company and the Agent, as
well as any relevant equitable considerations. It is hereby further agreed that
the relative benefits to the Company on the one hand and the Agent on the other
with respect to any transaction contemplated by this Agreement shall be deemed
to be paid in the same proportion as (i) the total value of the transaction
bears to (ii) the fees paid to the Agent with respect to the transaction. The
relative fault of the Company on the one hand and the Agent on the other with
respect to the transaction shall be determined by reference to, among other
things, whether any 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 Agent and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity, contribution and expense reimbursement
obligations set forth herein
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(i) shall be in addition to any liability an Indemnifying Party may have to any
Indemnified Person at common law of otherwise, (ii) shall survive the
termination of this Agreement, (iii) shall apply to any modification of this
Agreement and shall remain in full force and effect following the completion or
termination of the Agreement, (iv) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Agent or any
other Indemnified Person, and (v) shall be binding on any successor or assign of
the Company or the Agent and the respective successors or assigns to all or
substantially all of the Company's or the Agent's business and assets.
8. Effectiveness of Agreement. This Agreement shall become effective
(i) at 9:00 A.M., Atlanta, Georgia time, on the date hereof or (ii) upon release
by the Agent of the Securities for offering after the date hereof, whichever
shall last occur. The Agent agrees to notify the Company immediately after the
Agent shall have taken any action by such release or otherwise wherein this
Agreement shall have become effective. This Agreement shall, nevertheless,
become effective at such time earlier than the time specified above after the
date hereof as the Agent may determine by notice to the Company.
9. Conditions of the Agent's Obligations. The Agent's obligations to
act as agent of the Company hereunder and to find purchasers for the Securities
shall be subject to the accuracy, as of the Closing Date, of the representations
and warranties on the part of the Company herein contained, to the fulfillment
of or compliance by the Company with all covenants and conditions hereof, and to
the following additional conditions:
9.1 Counsel to the Agent shall not have objected in writing or shall
not have failed to give his consent to the Offering Documents (which objection
or failure to give consent shall not have been done unreasonably).
9.2 The Agent shall not have disclosed to the Company that the Offering
Documents, or any amendment thereof or supplement thereto, contains an untrue
statement of fact, which, in the opinion of counsel to the Agent, is material,
or omits to state a fact, which, in the opinion of such counsel, is material and
is required to be stated therein, or is necessary to make the statements
therein, under the circumstances in which they were made, not misleading.
9.3 Between the date hereof and the Closing Date, the Company shall not
have sustained any loss on account of fire, explosion, flood, accident, calamity
or any other cause of such character as would materially adversely affect its
business or property considered as an entire entity, whether or not such loss is
covered by insurance.
9.4 Between the date hereof and the Closing Date, there shall be no
litigation instituted or threatened against the Company, and there shall be no
proceeding instituted or threatened against the Company before or by any federal
or state commission, regulatory body or administrative agency or other
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governmental body, domestic or foreign, wherein an unfavorable ruling, decision
or finding would materially adversely affect the business, franchises, license,
permits, operations or financial condition or income of the Company considered
as an entity.
9.5 Except as contemplated herein or as set forth in the Offering
Documents, during the period subsequent to the most recent financial statements
contained in the Offering Documents, if any, and prior to the Closing Date, the
Company (i) shall have conducted its business in the usual and ordinary manner
as the same is being conducted as of the date hereof and (ii) except in the
ordinary course of business, the Company shall not have incurred any liabilities
or obligations (direct or contingent) or disposed of any assets, or entered into
any material transaction or suffered or experienced any substantially adverse
change in its condition, financial or otherwise. At the Closing Date, the equity
account of the Company shall be substantially the same as reflected in the most
recent balance sheet contained in the Offering Documents without considering the
proceeds from the sale of the Securities other than as may be set forth in the
Offering Documents.
9.6 The authorization of the Securities by the Company and all
proceedings and other legal matters incident thereto and to this Agreement shall
be reasonably satisfactory in all respects to counsel to the Agent, who shall
have furnished the Agent on the Closing Date with such favorable opinion with
respect to the sufficiency of all corporate proceedings and other legal matters
relating to this Agreement as the Agent may reasonably require, and the Company
shall have furnished such counsel such documents as he may have requested to
enable him to pass upon the matters referred to in this subparagraph.
9.7 The Company shall have furnished to the Agent the opinion, dated
the Closing Date, addressed to the Agent, from counsel to the Company, as
required by the Subscription Agreement.
9.8 The Company shall have furnished to the Agent a certificate of the
Chief Executive Officer and the Chief Financial Officer of the Company, dated as
of the Closing Date, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects at and as of
the Closing Date (other than representations and warranties which by
their terms are specifically limited to a date other than the Closing
Date), and the Company has complied with all the agreements and has
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date; and
(ii) the respective signers have each carefully examined the
Offering Documents, and any amendments and supplements thereto, and, to
the best of their knowledge, in the Offering memorandum, and any
amendments and supplements thereto, all statements contained in the
Offering Documents are true and correct, and neither the Offering
Documents, nor any amendment or supplement thereto, includes any untrue
statement of a material fact or omits to state a material
11
fact required to be stated therein or necessary to make the statements
therein under the circumstances in which they were made not misleading,
and since the date hereof, there has occurred no event required to be
set forth in an amended or supplemented Offering Documents, which has
not been set forth; except as set forth in the Offering Documents,
since the respective dates as of which or the periods for which the
information is given in the Offering Documents and prior to the date of
such certificate, (a) there has not been any substantially adverse
change, financial and otherwise, in the affairs of condition in the
Company, and (b) the Company has not incurred any material liabilities,
direct or contingent, or entered into any material transactions,
otherwise than in the ordinary course of business.
10. Termination.
10.1 This Agreement may be terminated by the Agent by notice to the
Company in the event that the Company shall have failed or been unable to comply
with any of the terms, conditions or provisions of this Agreement on the part of
the Company to be performed, complied with or fulfilled within the respective
times, if any, herein provided for, unless compliance therewith or performance
or satisfaction thereof shall have been expressly waived by the Agent in
writing.
10.2 This Agreement may be terminated by the Company by notice to the
Agent in the event that the Agent shall have failed or been unable to comply
with any of the terms, conditions or provisions of this Agreement on the part of
the Agent to be performed, complied with or fulfilled within the respective
times, if any, herein provided for, unless compliance therewith or performance
or satisfaction thereof shall have been expressly waived by the Company in
writing.
10.3 This Agreement may be terminated by the Agent by notice to the
Company at any time, if, in the reasonable, good faith judgment of the Agent,
payment for and delivery of the Securities is rendered impracticable or
inadvisable because: (i) additional material governmental restrictions not in
force and effect on the date hereof shall have been imposed upon trading in
securities generally; (ii) a war or other national calamity shall have occurred;
or (iii) the condition of the market (either generally or with reference to the
sale of the Securities to be offered hereby) or the condition of any matter
affecting the Company or any other circumstance is such that it would be
undesirable, impracticable or inadvisable, in the judgment of the Agent, to
proceed with this Agreement or with the Offering.
12
10.4 Any termination of this Agreement pursuant to this Section shall
be without liability of any character (including, but not limited to, loss of
anticipated profits or consequential damages) on the part of any party thereto,
except that the Company shall remain obligated to pay the costs and expenses
provided to be paid by it specified in Sections 3, 5, and 6; and the Company and
the Agent shall be obligated to pay, respectively, all losses, claims, damages
or liabilities, joint or several, under Section 7.1 in the case of the Company
and Section 7.2 in the case of the Agent.
11. Agent's Representations, Warranties and Covenants. The Agent
represents and warrants to and agrees with the Company that:
11.1 Agent is a corporation duly incorporated and existing under the
laws of the state of Georgia. Agent is registered with the Securities Exchange
Commission and the NASD.
11.2 There is not now pending or threatened against the Agent any
action or proceeding of which the Agent has been advised, either in any court of
competent jurisdiction, before the Commission or before any state securities
commission or the NASD, concerning the Agent's activities which would impair the
ability of the Agent to conduct the Offering as contemplated by this Agreement.
11.3 Agent's representations and warranties under this Section shall be
true and correct as of each Closing, and shall survive each Closing for a period
of six months.
12. Notices. Except as otherwise expressly provided in this Agreement:
12.1 Whenever notice is required by the provisions of this Agreement to
be given to the Company, such notice shall be in writing, addressed to the
Company, at:
If to Company: Euroweb International Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to: Xxxxx & Xxxxx
15th Floor
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
12.2 Whenever notice is required by the provisions of this Agreement to
be given to the Agent, such notice shall be given in writing, addressed to the
Agent, at:
13
If to the Agent: X.X. Xxxxx Securities, Inc.
Atlanta Financial Center, East Tower
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
with a copy to: Xxxxxxx X. Xxxx, Esq.
Xxxx Xxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, Xxxxxxx 00000
12.3 Any notice instructing the Escrow Agent to distribute monies or
Securities held in Escrow must be signed by authorized agents of both the
Company and the Agent in order to be valid.
13. Miscellaneous.
13.1 Benefit. This Agreement is made solely for the benefit of the
Agent and the Company, their respective officers and directors and any
controlling person referred to in Section 15 of the Act and their respective
successors and assigns, and no other person may acquire or have any right under
or by virtue of this Agreement, including, without limitation, the holders of
any Securities. The term "successor" or the term "successors and assigns" as
used in this Agreement shall not include any purchasers, as such, of any of the
Securities.
13.2 Survival. The respective indemnities, agreements, representations,
warranties, covenants and other statements of the Company and the Agent, or the
officers, directors or controlling persons of the Company and the Agent as set
forth in or made pursuant to this Agreement and the indemnity agreements of the
Company and the Agent contained in Section 7 hereof shall survive and remain in
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company or the Agent or any such officer, director or controlling person
of the Company or of the Agent; (ii) delivery of or payment for the Securities;
or (iii) the Closing Date, and any successor of the Company or the Agent or any
controlling person, officer or director thereof, as the case may be, shall be
entitled to the benefits hereof.
13.3 Governing Law. The validity, interpretation and construction of
this Agreement and of each party hereof will be governed by the Laws of the
State of Georgia. This Agreement and each Warrant Certificate hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
without regard to the principles of conflict of laws. The parties further agree
that any action between them shall be heard in Atlanta, Georgia, and expressly
consent to the jurisdiction and venue of the Superior Court of Xxxxxx County,
Georgia, and the United States District Court for the Northern District of
Georgia, Atlanta Division for the adjudication of any action asserted pursuant
to this Paragraph.
14
13.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be deemed an original and all of which together
will constitute one and the same instrument.
13.5 Confidential Information. All confidential financial or business
information (except publicly available or freely usable material otherwise
obtained from another source) respecting either party will be used solely by the
other party in connection with the within transactions, be revealed only to
employees or contractors of such other party who are necessary to the conduct of
such transactions, and be otherwise held in strict confidence.
13.6 Public Announcements. Prior to the Closing Date, neither party
hereto will issue any public announcement concerning the within transactions
without the approval of the other party.
13.7 Finders. The parties acknowledge that no person has acted as a
finder in connection with the transactions contemplated herein and each will
agree to indemnify the other with respect to any other claim for a finder's fee
in connection with the offering.
13.8 Recitals. The recitals to this Agreement are a material part
hereof, and each recital is incorporated into this Agreement by reference and
made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the day and year first above written.
"THE COMPANY"
EUROWEB INTERNATIONAL CORP.
By:_____________________________________
Title: _____________________________________
"THE AGENT"
X.X. XXXXX SECURITIES, INC.
By:_____________________________________
Title: _____________________________________
15
EXHIBIT "A"
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into as of this 24th day of March,
1999, by and among THE BANK OF NEW YORK (the "Escrow Agent"), X. X. Xxxxx
Securities, Inc. (the "Placement Agent"), and Euroweb International Corp. (the
"Company").
RECITALS
The Company proposes to offer for sale to investors through the Placement
Agent up to $800,000 in principal amount of the Company's common stock, par
value $0001 per shares (the "Securities") in multiple tranches with a minimum
amount for the first tranche of at least $300,000 (the "Initial Minimum") and a
minimum amount for each subsequent tranche of $100,000 (the "Subsequent
Minimum') resulting in given proceeds to the Company of up to $800,000 (the
"Proceeds").
The Placement Agent intends to sell the Securities as the Company's agent
on a best efforts basis (the "Offering").
The Company and Placement Agent desire to establish an escrow account in
which funds received from subscribers will be deposited pending completion of
the Escrow Period. The Bank of New York agrees to serve as Escrow Agent in
accordance with the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, it is hereby agreed as
follows:
1. ESTABLISHMENT OF ESCROW ACCOUNT. On or prior to the date of the
commencement of the offering, the parties shall establish an escrow account with
the Escrow Agent, which escrow account shall be entitled, Euroweb International
Corp. (the "Escrow Account"). The Placement Agent will instruct subscribers to
wire funds to the account of the Escrow Agent as follows:
The Bank of New York
ABA #000000000
GLA 111565
Re: TAS# X.X. Xxxxx & Euroweb International Corp
Attn: Xxxxx XxXxxxxxx 000-000-0000
Only wire transfers shall be accepted.
2. ESCROW PERIOD. The Escrow period shall begin with the commencement of
the Offering and shall terminate upon the earlier to occur of the following
dates:
A. The date upon which the Escrow Agent confides that its has received in
the Escrow Account gross proceeds of $800,000 in deposited, funds (the
"Maximum");
B. The expiration of one hundred and twenty (120) days from the date of
commencement of the Offering (unless extended by mutual written
agreement between the Company and the Placement Agent with a copy of
such extension to the Escrow Agent); or
C. The date upon which a determination is made by the Company and the
Placement Agent to terminate the offering prior to the sale of the
Maximum.
During the Escrow Period, the Company is aware and understands that it is not
entitled to any funds received into escrow and no amounts deposited in the
Escrow Account shall become the property of the Company or any other entity, or
be subject to the debts of the Company or any other entity.
3. DEPOSITS INTO THE ESCROW ACCOUNT. The Placement Agent agrees that it
shall promptly deliver all monies received from subscribers for the payment of
the Securities to the Escrow Agent for deposit in the Escrow Account.
4. DISBURSEMENTS FROM THE ESCROW ACCOUNT. At such time as Escrow Agent has
collected and deposited instruments of payment in the total amount of either of
the initial Minimum and any Subsequent Minimum and any amounts up to the
Maximum, Escrow Agent shall notify the Company and the Placement Agent. The
Escrow Agent will continue to hold such funds until Placement Agent and Company
jointly notify Escrow Agent in writing as to the disbursement of funds pursuant
to a closing statement signed by each of the Placement Agent and the Company
(the "Closing Statement"). In disbursing such funds, Escrow Agent is authorized
to rely upon such Closing Statement from Company and Placement Agent.
In the event the Escrow Agent does not receive the minimum deposits
totaling $300,000 prior to the expiration of the Escrow Period (the "Minimum
Deposits"), the Escrow Agent shall notify the Company and the Placement Agent.
upon receipt of payment instructions from the Company, the Escrow Agent shall
refund to each subscriber with interest the amount received from each
subscriber, without deduction, penalty, or expense to the subscriber. The
purchase money returned to each subscriber shall be free and clear of any and
all claims of the Company or any of its creditors.
In the event the Escrow Agent does receive deposits totaling the Minimum
prior to expiration of the Escrow Period, in no event will the Escrow Amount be
released to the Company until such amount is received by the Escrow Agent in
collected funds. For purposes of this Agreement, the term "collected funds"
shall mean all funds received by the Escrow Agent which have cleared normal
banking channels and are in the form of cash.
5. COLLECTION PROCEDURE. The Escrow Agent is hereby authorized to forward
each wire for collection and, upon collection of the proceeds of each wire
deposit the collected proceeds in the Escrow Account.
Any wires returned unpaid to the Escrow Agent shall be returned to the
Placement Agent. In such cases, the Escrow Agent will promptly notify the
Company for such return.
-2-
If the Company rejects any subscription for which the Escrow Agent has
already collected funds, the Escrow Agent shall promptly issue a refund check or
wire to the rejected subscriber. If the Company rejects any subscription for
which the Escrow Agent has not yet collected funds but has submitted the
subscriber's wire for collection, the Escrow Agent shall promptly issue a check
or wire the amount of the subscriber's wire to the rejected subscriber after the
Escrow Agent has cleared such funds. If the Escrow Agent has not yet submitted a
rejected subscriber's wire for collection, the Escrow Agent shall promptly remit
the subscriber's wire directly to the subscriber. The Company shall provide
payment instructions to the Escrow Agent.
6. INVESTMENT OF ESCROW AMOUNT. The Escrow Agent may invest the Escrow
Amount only in such accounts or investments as the Company may specify by
written notice. The Company may only specify investment in money market
instruments.
7. COMPENSATION OF ESCROW AGENT. The Company shall, pay the Escrow Agent a
fee for its escrow services as set forth on Exhibit "A" to this Escrow
Agreement. If it is necessary for the Escrow Agent to return funds to the
subscribers, the Company shall pay to the Escrow Agent an additional amount
sufficient to reimburse it for its fees and actual cost in disbursing such
funds. However, if funds are refunded to subscribers, no such fee, reimbursement
for costs and expenses, indemnification for any damages incurred by the Escrow
Agent, or any monies whatsoever shall be paid out of or chargeable to the
principal amount of funds on deposit in the Escrow Account.
8. GENERAL PROVISIONS.
(a) (i) Escrow Agent shall not be liable to anyone for any
damages, losses, or expense which they may incur as a
result of any act or omission of Escrow Agent, unless
such damages, losses, or expenses are caused by
Escrow Agent's willful misconduct or gross
negligence. Accordingly, Escrow Agent shall not incur
any such liability with respect to (i) any action
taken or omitted in good faith upon the advice of
Escrow Agent's counsel or counsel for any other party
hereto, given with respect to any question relating
to the duties and responsibilities of Escrow Agent
under this Agreement or (ii) any action taken or
omitted in reliance upon any instrument, including
execution, or the identity or authority of any person
executing such instrument, its validity and
effectiveness, but also as to the truth and accuracy
of any information contained therein which Escrow
Agent shall, in good faith, believe to be genuine, to
have been signed by a proper person or persons and to
conform to the provisions of this Escrow Agreement.
(ii) Escrow Agent shall not be bound in any way by any
contract or agreement between other parties hereto,
whether or not it has knowledge of any such contract
or agreement or of its terms or conditions.
(iii) The parties hereto, jointly and severally, hereby
agree to indemnify and, hold harmless Escrow Agent
against any and all costs, losses, claims, damages,
liabilities, expenses, including reasonable costs of
investigation, court costs,
-3-
and attorney's fees, and disbursements, which may be
imposed upon Escrow Agent in connection with its
acceptance of appointment as Escrow Agent hereunder,
including any litigation arising from this Escrow
Agreement or invoking the subject matter hereof, and
all such costs, expenses and disbursements shall be
deducted from the income (if sufficient) or paid by
the parties hereto, except for matters arising from
the gross negligence or willful misconduct of Escrow
Agent.
(iv) As security for such fees and expenses of Escrow
Agent and any and all losses, claims, damages,
liabilities and expenses incurred by Escrow Agent in
connection with its acceptance of appointment
hereunder, and with performance of the agreements
herein contained, the Escrow Agent is hereby given a
lien upon all assets held by Escrow Agent hereunder,
which lien shall be prior to all other liens upon or
claims against such assets, except for claims of
subscribers in the event the Initial Minimum is not
raised.
(b) (i) In the event of any disagreement among any of the
parties to this Agreement, or among them or any other
person resulting in adverse claims and demands being
made in connection with or from any property involved
herein or affected hereby, Escrow Agent shall be
entitled to refuse to comply with any such claims or
demands as long as such disagreement may continue,
and in so refusing, shall make no delivery or other
disposition of any property then held by it under
this Escrow Agreement, and in so doing the Escrow
Agent shall be entitled to continue to refrain from
acting until (a) the right of adverse claimants shall
have been finally settled by binding arbitration. or
finally adjudicated in a court assuming and having
jurisdiction. of the property involved herein or
affected hereby or (b) all differences shall have
been adjusted by agreement and Escrow Agent shall
have been notified in writing of such agreement
signed by the parties hereto.
(ii) In the event of such disagreement (or resignation
under the terms of this Agreement), Escrow Agent may,
but need not, tender into the registry or custody of
any court of competent jurisdiction all, money or
property in its hands under the terms of this
Agreement, together with such legal proceedings as it
deems appropriate and thereupon to be discharged from
all further duties under this Escrow Agreement. The
filing of any such legal proceeding shall not deprive
Escrow Agent of its compensation earned prior to such
filing.
(iii) Escrow Agent shall have no obligation to take any
legal, action in connection with this Escrow
Agreement or towards its enforcement, or to appear
in, prosecute or defend any action or legal
proceeding which would or might involve it in any
cost, expense, loss or liability unless security and
indemnity shall be furnished.
-4-
(c) This Agreement contains the entire understanding
between and among the parties hereto, and shall be
binding upon and inure to the benefit of such
parties, and subject to its terms, their respective
successors, heirs, assigns and legal representatives.
Any corporation into which Escrow Agent may be merged
or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion
or consolidation to which Escrow Agent shall be a
party, or any corporation to which substantially all
the corporate trust business of Escrow Agent may be
transferred, shall., subject to the terms of the
Escrow Agreement, be Escrow Agent under this Escrow
Agreement without further act.
(d) This Escrow Agreement is being delivered in and shall
be governed by and construed and enforced in
accordance with the laws of the State of Georgia
without giving effect to the principals or rules
governing conflicts of laws.
(e) Notices, requests, demands or other communications
required or permitted under this Escrow Agreement
will be in writing and will be deemed given when
actually delivered, received via facsimile notice for
which a confirmation is received, or the third
business day after said notice has been sent by
certified mail, postage prepaid, return receipt
requested to:
If to Escrow Agent: The Bank of New York
Suite 520
000 Xxxxxxx Xxxxxx, Xxxxx
Xxxxxxx, Xxxxxxx 00000
If to Placement Agent: X.X. Xxxxx Securities, Inc.
Atlanta Financial Center, East Tower
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000)000-0000
If to Company: Euroweb International Corp.
000 Xxxx Xxxxxx
Xxx Xxxx , Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attn: President
or such other address as a party may specify in writing to other parties
pursuant hereto.
(f) This Escrow Agreement shall not be modified, revoked,
released or terminated except in writing and signed
by parties hereto.
(g) Should, at any time, any attempt be made to modify
this Escrow Agreement in a manner that would increase
the duties and responsibilities of Escrow Agent, or
to
-5-
modify this Escrow Agreement in any matter which
Escrow Agent shall deem undesirable, or at any other
time, Escrow Agent may resign by notifying the
parties in writing, by certified mail to their
respective addresses here and above set forth. Until
(i) the acceptance by such successor Escrow Agent as
shall be appointment by such parties; or (ii) 60 days
following the date upon which notice was mailed,
whichever occurs sooner, Escrow Agent's only
remaining obligation shall be to perform its duties
hereunder in accordance with the terms of this Escrow
Agreement. If said 60 days have passed without the
acceptance by such successor Escrow Agent as shall
have been appointed by such parties, then the Escrow
Agent may exercise its rights under item 8(c) (ii) of
this Agreement.
(h) No Implied Duties. The Escrow Agent undertakes to
perform only such duties as are expressly set forth
herein and no additional duties or obligations shall
be implied hereunder. The parties hereby acknowledge
that the Escrow Agency is serving as the Escrow Agent
of the offering for the limited purposes set forth
herein, and hereby agree that they will not represent
or imply that the Escrow Agent, by serving as the
escrow agent hereunder or otherwise, has investigated
the desirability or advisability of this investment,
or has approved, endorsed or passed upon the merits
of this offering or any related, offering. It is
further agreed that no party shall in any way use the
name "The Bank of New York" in any sales presentation
or literature except in, the context of the duties of
the Escrow Agent as escrow agent of the Offering in
the strictest sense. Any breach or violation of this
paragraph (i) shall be grounds for the immediate
resignation by the Escrow Agent. This Escrow
Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute
one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
-6-
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year above set forth.
ESCROW AGENT: THE BANK OF NEW YORK
By:_____________________
Name: Xxxxx X. XxXxxxxxx
Title: As Agent
PLACEMENT AGENT: X.X. XXXXX SECURITIES, INC.
By:______________________
Name:
Title:
COMPANY: EUROWEB INTERNATIONAL CORP.
By:_______________________
Name:
Title:
EXHIBIT "A"
ESCROW AGREEMENT BY AND AMONG THE BANK OF NEW YORK,
X.X. XXXXX SECURITIES, INC. AND EUROWEB INTERNATIONAL CORP.
I. ACCEPTANCE FEE $500.00
Includes review of all documents, attendance at document
conferences and closing (if necessary), establishment of accounts,
receipt and deposit assets. This one-time fee is payable at the
time of exercising.
II. ANNUAL ADMINISTRATION FEE $750.00
Includes performance of all administrative duties under document
provisions, including receipt and **disbursement of funds, periodic
statement of account. Our annual administration fee is billed and
payable annually in advance.
III. **DISBURSEMENT FEE $25.00
Charge for each payment each in excess of up to three disbursements
of three payments each covered by the Annual Administration Fee.
IV. REFUND OF SUBSCRIPTION DEPOSITS $50.00
Charge for each subscriber paid. Includes calculation of interest
earned and wire/check fees.
V. OUT-OF-POCKET EXPENSES AT COST
All out-of-pocket expenses such as, but not limited to, travel,
stationary, postage, insurance, courier charges, legal fees (if
required), wire transfers, retention of records, and supplies such
as check forms, will be billed at cost. In the event the
transaction terminates before closing, all out-of-pocket expenses
incurred, including our counsel fees, if applicable, will be
billed.
VI. EXTRAORDINARY SERVICES AT COST
Charges for the performance of any services not of a routine
administrative nature will be determined by appraisal at such time
in amounts commensurate with the service. These extraordinary
services may partially be classified as amendments and releases:
preparation of special or interim reports which the escrow agent or
agent must submit; unusual studies, considerations and actions
taken with respect to document provisions.
We reserve the right to adjust this schedule of fees from time to
time upon 60 days written notice.
OUR PROPOSAL IS SUBJECT TO OUR REVIEW AND ACCEPTANCE OF THE GOVERNING
DOCUMENTS WHICH SET FORTH OUR DUTIES AND RESPONSIBILITIES.
DATED: _____________
CLOSING OF EUROWEB INTERNATIONAL CORP.
COMMON STOCK
PRIVATE PLACEMENT
(A) CASH RECEIPTS TO ESCROW AGENT
From Investors referenced in item II(A) $741,728.81
(B) CASH DISBURSEMENTS
Funds in escrow with Bank of New York as Escrow Agent $741,728.81
Deductions
(1) Placement Agent Fee to JP. Xxxxx Securities Inc. as
Placement Agent $74,172.88
(2) Attorneys' Fees of Xxxx Xxxx Xxxxx & Xxxxx LLP, $15,000.00
counsel to Placement Agent to be wired to firm
Operating Account at Wachovia Bank
(ABA #000000000
Account#12 884 733
Account Name: Xxxx Moss Kline & Xxxxx)
(3) Escrow Agent Fee to Bank of New York as Escrow Agent $1,250.00
Amount to be wired to Euroweb International Corp. $651,305.93
Bank Name: Chase Manhattan Bank
Branch No.: 026
Bank Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Account Title: Euroweb International Corp.
Address: c/o Cohen & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Account No.: 116 084 367
ABA: : 000-0000-00
Amount to be wired to X.X. Xxxxx Securities, Inc. 74,172.88
South Trust Bank
Atlanta Financial Center
Xxxxxxx, Xxxxxxx 00000
ABA#: 061 000 256
Account#: 66 871 293
Beneficiary: X.X. Xxxxx Securities, Inc.
Page 1 of 2
(C) COMMON STOCK TO BE ISSUED TO INVESTORS
Name Certificate Nos. Number of Shares
GPS America Fund Ltd.* EI 00024 78,476
Cache Capital LP* EI 00025 34,285
Atlantis Capital Fund Ltd.* EI 00026 300,000
Markham Holding Limited 152,380
(D) WARRANTS TO PLACEMENT AGENT
Warrants to purchase 56,514 shares of Euroweb International Corp.
common stock at $2.10 per share.
Accepted and agreed to as of this 7th day of April, 1999
EUROWEB INTERNATIONAL CORP.
By:/s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
THE BANK OF NEW YORK
AS ESCROW AGENT
By:______________________
Name: Xxxxx X. XxXxxxxxx
Title: As Agent
X.X. XXXXX SECURITIES, INC.
AS PLACEMENT AGENT
By:______________________
Name:
Title:
--------------- *GPS America Fund Ltd., Cache Capital LP, and Atlantis Capital
Fund Ltd. are managed by an affiliate of X.X. Xxxxx Securities, Inc. (the
"Agent"). The investment decisions made by these Funds are independent of the
Agent and may be contrary to any actions or recommendation made by the Agent or
its affiliates at any time.
Page 2 of 2
