Accelerize New Media, Inc. PLACEMENT AGENT’S AGREEMENT
Exhibit
10.2
Accelerize
New Media, Inc.
PLACEMENT
AGENT’S AGREEMENT
November
9, 2009
Skyebanc,
Inc.
0000
Xxxxx Xxxxxx
Xxxxx:
000
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Gentlemen:
The
undersigned, Accelerize New Media, Inc., a Delaware corporation (the “Company”),
proposes to offer for sale in a private placement (“Offering”), up to three
million (3,000,000) shares of common stock at $0.40 per share (the “Common
Stock”), plus 3-year warrants to purchase an additional three million
(3,000,000)shares of common stock with an exercise price of $0.65 per share (the
“Warrants”, and collectively with the Common Stock, the
“Securities”).
Appointment
of Placement Agent; The Offering Period.
1.1 Appointment of Placement
Agent You are
hereby appointed non exclusive Placement Agent of the Company during the
offering period herein specified (“Offering Period”) for the purpose of
assisting the Company in placing the shares with purchasers who are qualified
accredited investors (“Subscribers”). You hereby accept such agency
and agree to assist the Company in placing shares with the
Subscribers. Your agency hereunder is terminable for any reason by
either party upon a thirty (30) day prior written notice, and immediately upon
termination of the Offering or breach by you of your material obligations
hereunder.
1.2 Offering Period
The
Offering Period shall commence on the day the Offering Documents are first made
available to you by the Company and will continue until the earlier of final
Closing (as hereinafter defined) of the Maximum Offering or December 31, 2009
(the “Termination Date”), unless extended by the Company for a period of up to
an additional ninety (90) days from such date without notice to any Subscriber
(the “Offering Period”). After the Initial Closing, subsequent
closings with respect to accepted subscriptions may take place at any time
during the Offering Period as may be mutually determined by the Company and the
Placement Agent (such subsequent closings and the Initial Closing will each be
referred to herein as a “Closing”).
1.3 Offering Documents
The
Company will provide the Placement Agent with a sufficient number of copies of
the Offering Documents for delivery to potential Subscribers and such other
information, documents and instruments which the Placement Agent deems
reasonably necessary to act as Placement Agent hereunder and to comply with the
rules, regulations and judicial and administrative interpretations respecting
compliance with applicable state and federal statutes related to the
Offering.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 2
2. Compliance with Securities
Laws. Each of
the Company and the Placement Agent agrees to conduct the Offering in a manner
intended (a) to qualify as a private placement of the Securities in any
jurisdiction in which the Securities are offered (including the U.S.), and
(b) to comply with the requirements of Rule 506 of Regulation D under the
Securities Act. Assuming the accuracy of the representations and
warranties given to the Company by each investor to the extent relevant for such
determination, the Offering will be exempt from the registration requirements of
the Securities Act. The Company agrees (i) to limit offers to sell,
and solicitations of offers to buy, the Securities to persons reasonably
believed by it to be “accredited investors” within the meaning of Rule 501(a)
under the Securities Act, and (ii) not to engage in any form of general
solicitation or general advertising in connection with the Offering within the
meaning of Rule 502 under the Securities Act. The Company agrees to
conduct the Offering in a manner intended to comply with the registration or
qualification requirements, or available exemptions therefrom, under applicable
state securities laws. The Company shall be responsible for
compliance with the filing requirements of the securities laws of all applicable
countries, states of the U.S., and other jurisdictions. The Placement
Agent shall advise the Company of those states of the U.S. and other
jurisdictions in which the Placement Agent intends to offer the Securities in
order that the Company’s counsel can ensure that the Offering has been qualified
or exempted under the appropriate laws and regulations. The Placement
Agent shall not engage in sales of the Securities in any state requiring
pre-sale qualification until the Company has qualified to sell Securities in
such state.
3. Representations and
Warranties of the Company The
Company represents and warrants to the Placement Agent and the Subscribers as
follows:
3.1 Disclosure in Offering
Documents.
3.1.1 Disclosure of
Contracts The
descriptions in the Public Documents of all material contracts, agreements,
instruments, indentures, mortgages, loans, leases, licenses, arrangements or
undertakings of any nature, written or oral, of the Company which involve future
payments, performance or services, development of products, or delivery of goods
or materials to or by the Company of an aggregate amount or value in excess of
$250,000, or which otherwise are material to the business or prospects of the
Company (collectively, “Contracts”) are accurate in all material respects and
present fairly the information required to be disclosed therein and there are no
contracts or other documents required to be described in the Public Documents
which have not been so described. The Company has furnished the
Placement Agent, when and if requested, with true, correct and complete copies
(or where oral, written descriptions) of all Contracts, including all exhibits,
schedules, amendments, supplements, modifications and waivers thereto. Except as
otherwise stated in the Public Documents, each of the Contracts is in full force
and effect, the Company has performed in all material respects all of its
obligations thereunder and is not in default thereunder, and no party to a
Contract has made a claim to the effect that the Company has failed to perform
any obligations thereunder. To the best knowledge of the Company, the
Company has not received any written notification from any contracting party to
a Contract to terminate, cancel or modify such Contract or to reduce or
otherwise change its activity thereunder so as to adversely affect in any
material respect the benefits derived or expected to be derived therefrom by the
Company.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 3
3.2 Changes After Dates in
Offering Documents.
3.2.1 No Material Adverse
Change. Except
as otherwise stated in the Public Documents, since the Balance Sheet Date, as
hereinafter defined, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations, business or
business prospects of the Company, including, but not limited to a material loss
or interference with its business from fire, storm, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, whether or not arising in the
ordinary course of business, (ii) the Company has not become a party to, and
neither the business nor the property of the Company has become the subject of,
any litigation which, if adversely determined, would have a material adverse
effect on the business, properties, assets, condition (financial or otherwise)
of the Company, whether or not in the ordinary course of business (a “Material
Adverse Effect”), and (iii) there have been no transactions entered into by the
Company, other than those in the ordinary course of business or reflected in the
Public Documents, which are material with respect to the condition, financial or
otherwise, or to the results of operations, or business of the
Company. The Balance Sheet Date is defined as March 31,
2009.
3.2.2 Recent Securities
Transactions. Etc. Since the
most recent Balance Sheet date, and except as otherwise specifically stated in
the Public Documents or on Schedule 3.2.2 hereto, the Company has not (i) issued
any securities or incurred any liability or obligation, direct or contingent,
for borrowed money; (ii) declared or paid any dividend or made any other
distribution on or in respect to its capital stock; or (iii) issued any options,
warrants or other rights to purchase the capital stock of the Company, or any
security or other instrument which by its terms is convertible into, exercisable
for or exchangeable for capital stock of the Company.
3.3 No Preemptive Rights;
Options; Registration Rights Except as
set forth in the Documents, there are no preemptive or other rights to subscribe
for or purchase, or any restriction upon the voting or transfer of, any shares
of Common Stock, or other securities of the Company.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 4
3.4 Financial Statements
The
financial statements of the Company, including any notes thereto and supporting
schedules, included or incorporated by reference in the Public Documents
(“Financials”), fairly present the financial position and results of operations
of the Company at the dates thereof and for the periods covered thereby,
subject, in the case of interim periods, to year-end adjustments and normal
recurring accruals. The Company has no material liabilities or
obligations, contingent, direct, indirect or otherwise except (i) as set forth
in the balance sheet for the Balance Sheet Date included in the Financials or
the footnotes thereto, (ii) those incurred in the ordinary course of business
since the Balance Sheet Date, and (iii) otherwise as set forth in the Public
Documents. The Public Documents also set forth all material
outstanding amounts due to any employees, officers, directors or stockholders of
the Company, or to any of their respective affiliates, including, but not
limited to, accrued salaries, loans, etc.
3.5 Authorized Capital; Options;
Etc. The
Company had, at the date or dates indicated in the Public Documents, such duly
authorized, issued and outstanding capitalization as set forth in the Public
Documents.
3.6 Valid Issuance of
Securities: Etc.
3.6.1 Outstanding Securities
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 with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company. All
outstanding options and warrants to purchase shares of capital stock constitute
the valid and binding obligations of the Company, enforceable in accordance with
their terms. The authorized capital stock and outstanding options and
warrants conform to all statements relating thereto contained in the Public
Documents. The offers and sales of the outstanding capital stock,
options and warrants to purchase shares of capital stock were at all relevant
times either registered under the Act and the applicable state securities or
Blue Sky laws or exempt from such registration requirements.
3.6.2 Common Shares &
Warrants The
securities underlying the warrants have been duly and validly authorized and,
when issued and delivered in accordance with the terms of the Subscription
Agreements, will be duly and validly issued, fully paid and
non-assessable. The holders of the shares and warrants will not be
subject to personal liability by reason of being such holders. All
corporate action required to be taken for the authorization, issuance and sale
of the shares and warrants and the securities contained in the warrants has been
duly and validly taken.
3.7 Registration Rights of Third
Parties Except as
set forth in the Public Documents or on Schedule 3.7 hereto, no holders of any
securities of the Company or of any options or warrants of the Company
exercisable for or convertible or exchangeable into securities of the Company
have the right to require the Company to register any such securities of the
Company under the Act or to include any such securities in a registration
statement to be filed by the Company.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 5
3.8 Due Authorization
The
Company has full right, power and authority to enter into this Agreement and the
Subscription Agreements, to issue the shares and warrants and the securities
contained in the shares and warrants and to perform all of its obligations
hereunder and thereunder and to consummate the transactions contemplated by the
Offering Documents. This Agreement has been, and the Subscription
Agreements, when executed and delivered, will have been, duly and validly
authorized by all necessary corporate action and no further corporate action or
approval is or will be required for their respective execution, delivery and
performance. This Agreement constitutes and each Subscription
Agreement (assuming the due authorization, execution and delivery by each
subscriber) to be entered into by the Company with respect to the purchase and
sale of the shares and warrants, will constitute, when executed and delivered by
the Company, valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms (except (i) as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws now or hereafter in effect relating to or affecting creditors’
rights generally, (ii) that the enforceability of the indemnification and
contribution provisions of the respective agreements may be limited by the
federal and state securities laws and public policy, and (iii) that the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought).
3.9 No Conflicts
The
Company’s execution, delivery, and performance of this Agreement and the
Subscription Agreements, the consummation by the Company of the transactions
contemplated herein and therein and the compliance by the Company with the
provisions of this Agreement and the Subscription Agreements have been duly
authorized by all necessary corporate action and do not and will not, with or
without the giving of notice or the lapse of time or both (i) result in a breach
of, or conflict with any of the terms and provisions of, or constitute a default
under, or result in the creation, modification, termination or imposition of any
lien, charge or encumbrance upon any property or assets of the Company pursuant
to the terms of any indenture, mortgage, deed of trust, note, loan or credit
agreement or any other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which the Company is a
party or by which the Company may be bound or to which any of the property or
assets of the Company is subject; (ii) result in any violation of the provisions
of the Certificate of Incorporation or the By-laws of the Company; (iii) to the
best of the Company’s knowledge, violate any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of its material
properties or material businesses; or (iv) have any material adverse effect on
any permit, license, certificate, registration, approval, consent, license or
franchise necessary for the Company to own or lease and operate any of its
properties or to conduct its business.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 6
3.10 No Defaults
Except as
described in the Public Documents, no material default exists in the due
performance and observance of any term, covenant or condition of any permit,
license, contract, indenture, mortgage, deed of trust, note, loan or credit
agreement, or any other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which the Company is a
party or by which the Company may be bound or to which any of the properties or
assets of the Company is subject the effect of which would have a Material
Adverse Effect. Except as described in the Public Documents, the
Company is not in violation of any material term or provision of its Certificate
of Incorporation or By-Laws or in material violation of any franchise, license,
permit, applicable law, rule, regulation, judgment or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company or
any of its properties or business.
3.11 Corporate Power; Licenses;
Consents.
3.11.1 Conduct of Business
To the
Best of its knowledge, the Company has all requisite corporate power and
authority, and has all necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental regulatory officials,
agencies, authorities and bodies to own or lease its properties and conduct its
business as described in the Public Documents. The Company is and has
been doing business in material compliance with all such authorizations,
approvals, orders, licenses, certificates and permits and all federal, state and
local laws, rules and regulations. The disclosures in the Public
Documents concerning the effects of federal, state and local regulation on the
Company’s business as currently conducted or contemplated to be conducted are
correct in all material respects and do not omit to state a material
fact.
3.11.2 Transactions Contemplated
Herein; Consents The
Company has all corporate power and authority to enter into this Agreement, and
the Subscription Agreements to carry out the provisions and conditions hereof
and thereof, and all consents, authorizations, approvals and orders required in
connection therewith have been obtained. Except as set forth in the
Public Documents, no consent, approval, authorization, order of, or filing with,
any court, governmental agency, authority or other body is required to
consummate the transactions contemplated by this Agreement and the Subscription
Agreements, and the issuance of the Securities, except that the offer and sale
of the Securities in certain jurisdictions may be subject to the provisions of
the securities or Blue Sky laws of such jurisdictions.
3.12 Title to Property;
Insurance Except as
set forth in the Public Documents, the Company has good and marketable title to,
or valid and enforceable leasehold estates in, all items of real and personal
property (tangible and intangible) owned or leased by it, free and clear of all
liens, encumbrances, claims, security interests, defects and restrictions of any
material nature whatsoever. The Company has adequately insured its
properties against loss or damage by fire or other casualty and maintains such
insurance in adequate amounts which are adequate to protect its financial
condition against the risks involved in the conduct of its
businesses.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 7
3.13 No Pending Actions
Except as
set forth in the Public Documents, there are no actions, suits, proceedings,
claims, or hearings of any kind or nature existing or pending (or, to the best
knowledge of the Company, threatened) or, to the best knowledge of the Company,
any investigations or inquiries, before or by any court, or other governmental
authority, tribunal or instrumentality (or, the Company’s best knowledge, any
state of facts which would give rise thereto), pending or threatened against the
Company, or involving the properties of the Company, which might result in any
Material Adverse Effect or which might materially adversely affect the
transactions or other acts contemplated by this Agreement or the validity or
enforceability of this Agreement. Except as described in the Public
Documents, there are no outstanding orders, judgments or decrees of any court,
governmental agency or other tribunal naming the Company and enjoining the
Company from taking, or requiring the Company to take, any action, or to which
the Company, its properties or business, is bound or subject.
3.14 Due Incorporation,
Qualification and Good Standing The
Company has been duly incorporated, validly exists as a corporation and is in
good standing under the laws of its state of incorporation. The
Company is duly qualified and licensed and in good standing as a foreign
corporation for the transaction of business and is in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification or licensing, except where the
failure to qualify would not have a Material Adverse Effect. The
Company has all requisite corporate power and authority necessary to own or hold
its properties and conduct its business as described in the Public
Documents.
3.15 Taxes
Except as
set forth in the Public Documents or as set forth on Schedule 3.15 hereto, the
Company has filed all federal tax returns and all state and municipal and local
tax returns (whether relating to income, sales, franchise, withholding, real or
personal property or other types of taxes) required to be filed under the laws
of the United States and applicable states, and has paid in full all taxes which
have become due pursuant to such returns or claimed to be due by any taxing
authority or otherwise due and owing; provided, however, that the Company has
not paid any tax, assessment, charge, levy or license fee that it is contesting
in good faith and by proper proceedings and adequate reserves for the accrual of
same are maintained if required by generally accepted accounting
principles. Each of the tax returns heretofore filed by the Company
correctly and accurately reflects the amount of its tax liability
thereunder. Except as set forth in the Public Documents, the Company
has withheld, collected and paid all levies, assessments, license fees and taxes
to the extent required. As used herein, “tax” or “taxes” include all
taxes, charges, fees, levies or other assessments imposed by any Federal, state,
local, or foreign taxing authority, including, without limitation, income,
premium, recapture, credit, excise, property, sales, use, occupation, service,
service use, leasing, leasing use, value added, transfer, payroll, employment,
license, stamp, franchise or similar taxes (including any interest earned
thereon or penalties or additions attributable thereto). The term
“returns” means all returns, declarations, reports, statements, and other
documents required to be filed in respect of taxes.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 8
3.16 Reserved.
3.17 Transactions Affecting
Disclosure to FINRA.
3.17.1 Finder’s Fees
The
Company is not obligated to pay a finder’s fee to anyone in connection with the
introduction of the Company to the Placement Agent, or the consummation of the
Offering contemplated hereunder.
3.17.2 Use of Proceeds
None of
the net proceeds of the Offering will be paid by the Company to any FINRA member
or its affiliate or associates, except as specifically authorized
herein.
3.18 Foreign Corrupt Practices
Act Neither
the Company nor any of its subsidiaries has, nor any director, officer, agent,
employee or other person acting on behalf of the Company or any subsidiary has
in the course of his actions for or on behalf of the Company, used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee. Without limiting the
generality of the foregoing, the Company and its subsidiaries have not directly
or indirectly made or agreed to make (whether or not said payment is lawful) any
payment to obtain, or with respect to, sales other than usual and regular
compensation to its or their employees and sales representatives with respect to
such sales.
3.19 Intangibles
The
Company owns or possesses the requisite licenses or rights to use all material
trademarks, service marks, service names, trade names, patents and patent
applications, copyrights and other rights (collectively, “Intangibles”) used by
the Company in its business or relating to products sold by the Company, and all
such Intangibles are stated in the Public Documents. Any of the
Company’s Intangibles which have been registered in the United States Patent and
Trademark Office have been fully maintained and are in full force and effect,
except where the failure to do so would not result in a Material Adverse
Effect. There is no claim or action by any person pertaining to, or
proceeding pending or to the Company’s knowledge, threatened and the Company has
not received any notice of conflict with the asserted rights of others which
challenges the exclusive right of the Company with respect to any Intangibles
used in the conduct of the Company’s business except as described in the Public
Documents or except where such challenge, even if successful, would not result
in a Material Adverse Effect. To the best of Company’s knowledge, the
Intangibles and the Company’s current products, services and processes do not
infringe on any intangibles held by any third party. To the best of
the Company’s knowledge, no others have infringed upon the Intangibles of the
Company.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 9
3.19 Relations With
Employees.
3.19.1 Employee Matters
The
Company has generally enjoyed a satisfactory employer-employee relationship with
its employees and is in compliance in all material respects with all federal,
state and local laws and regulations respecting the employment of its employees
and employment practices, terms and conditions of employment and wages and hours
relating thereto. There are no pending investigations involving the
Company by the U.S. Department of Labor, or any other governmental agency
responsible for the enforcement of such federal, state or local laws and
employment laws and regulations. There is no unfair labor practice
charge or complaint against the Company pending before a Labor Relations Board
or any strike, picketing, boycott, dispute, slowdown or stoppage pending or
threatened against or involving the Company or any predecessor
entity. No questions concerning representation exist respecting the
employees of the Company and no collective bargaining agreement or modification
thereof is currently being negotiated by the Company. No grievance or
arbitration proceeding is pending under any expired or existing collective
bargaining agreements of the Company, if any.
3.19.2 Employee Benefit Plans
Except as
disclosed in the Public Documents, the Company neither maintains, sponsors nor
contributes to, nor is it required to contribute to, any program or arrangement
that is an “employee pension benefit plan, an employee welfare benefit plan,” or
a “multi-employer plan” as such terms are defined in Sections 3(2), 3(1) and
3(37), respectively, of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”) (“ERISA Plans”). Other than as disclosed in the
Public Documents, the Company does not, and has at no time, maintained or
contributed to a defined benefit plan, as defined in Section 3(35) of
ERISA. Except as disclosed in the Public Documents, there are no
unfunded benefits under any ERISA Plan which is subject to the funding standards
of ERISA. Other than claims for benefits in the ordinary course, there is no
pending claim, litigation, arbitration or any other legal proceeding involving
any ERISA Plan which may result in material liability on the part of the Company
or any ERISA Plan under ERISA or any other law, nor, is there any reasonable
basis for such a claim. The Company has no bonus, incentive or
deferred compensation plans which constitute a continuing liability of the
Company, except individual arrangements of the Company with employees relating
to their employment. There are no employees of the Company who, in
connection with their employment by the Company, are receiving any pension or
retirement payments or are entitled to receive any unfunded pensions not covered
by a pension plan to which the Company is a party.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 10
3.20 Environmental Matters
The
Company and each of its subsidiaries is in compliance in all material respects
with all Environmental and Safety Requirements, and there are no proceedings
pending or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries alleging any failure to so comply or involving any of
its past operations or any real property currently used by the Company or any of
its subsidiaries. Neither the Company nor any of its subsidiaries has
received any written or oral notice or report with respect to it or its
facilities regarding any (A) actual or alleged violation of environmental and
safety requirements or (B) actual or potential liability arising under
Environmental and Safety Requirements, including, without limitation, any
investigatory, remedial or corrective obligation. Neither the Company
nor any of its subsidiaries has expressly assumed or undertaken any liability of
any other person under any Environmental and Safety
Requirements. Neither the Company nor any of its subsidiaries has
treated, stored, disposed of, arranged for or permitted the disposal of,
transported, handled or released any substance, or owned or operated any real
property in a manner that has given rise to liabilities pursuant to CERCLA, SWDA
or any other Environmental and Safety Requirement, including any liability for
response costs, corrective action costs, personal injury, property damage,
natural resources damage or attorney fees, or any investigative, corrective or
remedial obligations. “Environmental and Safety
Requirements” means all laws, orders, contractual obligations and all
common law concerning public health and safety, worker health and safety, and
pollution or protection of the environment, including, without limitation, all
those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control or cleanup of any
hazardous materials, substances or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals, petroleum products or
byproducts, asbestos, polychlorinated biphenyls, noise or radiation, including,
but not limited to, the SWDA, the Clean Air Act, as amended, 42 U.S.C. §§ 7401
et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251
et seq., the Emergency Planning and Community Right-to-Know Act, as amended, 42
U.S.C. §§ 11001 et seq., CERCLA, the Hazardous Materials Transportation Uniform
Safety Act, as amended, 49 U.S.C. §§ 5101 et seq., the Occupational Safety and
Health Act of 1970, as amended, and the rules and regulations promulgated
thereunder. “CERCLA” means the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended, and the rules and regulations promulgated thereunder. “SWDA” means the Solid
Waste Disposal Act, as amended, and the rules and regulations promulgated
thereunder.
3.21 No Regulatory Problems
The
Company (i) has not filed a registration
statement which is the subject of any pending proceeding or examination under
Section 8 of the Securities Act, and is not and has not been the subject of any
refusal order or stop order thereunder; (ii) is not subject to any pending
proceeding under Rule 258 of the Securities Act or any similar rule adopted
under Section 3(b) of the Securities Act, or to an order entered thereunder;
(iii) has not been convicted of any felony or misdemeanor in connection with the
purchase or sale of any security or involving the making of any false filing
with the Commission; (iv) is not subject to any order, judgment, or decree of
any court of competent jurisdiction temporarily or preliminarily restraining or
enjoining, or any order, judgment, or decree of any court of competent
jurisdiction permanently restraining or enjoining, the Company from engaging in
or continuing any conduct or practice in connection with the purchase or sale of
any security or involving the making of any false filing with the
Commission; and (v) is not subject to a United States Postal Service
false representation order entered under Section 3005 of Xxxxx 00, Xxxxxx Xxxxxx
Code; or a temporary restraining order or preliminary injunction entered under
Section 3007 of Title 39, United States Code, with respect to conduct alleged to
have violated Section 3005 of Xxxxx 00, Xxxxxx Xxxxxx Code.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 11
To the
Company’s knowledge, none of the Company’s directors, officers, or beneficial
owners of five (5%) percent or more of any class of its equity securities (i)
has been convicted of any felony or misdemeanor in connection with the purchase
or sale of any security, involving the making of a false filing with the
Commission, or arising out of the conduct of the business of an underwriter,
broker, dealer, municipal securities dealer, or investment advisor; (ii) is
subject to any order, judgment, or decree of any court of competent jurisdiction
temporarily or preliminarily enjoining or restraining, or is subject to any
order, judgment, or decree of any court of competent jurisdiction, permanently
enjoining or restraining such person from engaging in or continuing any conduct
or practice in connection with the purchase or sale of any security, or
involving the making of a false filing with the Commission, or arising out of
the conduct of the business of an underwriter, broker, dealer, municipal
securities dealer, or investment adviser; (iii) is subject to an order of the
Commission entered pursuant to Section 15(b), 15B(a) or 15B(c) of the Exchange
Act, or is subject to an order of the Commission entered pursuant to Section
203(e) or (f) of the Investment Advisers Act of 1940; (iv) is suspended or
expelled from membership in, or suspended or barred from association with a
member of, an exchange registered as a national securities exchange pursuant to
Section 6 of the Exchange Act, an association registered as a national
securities association under Section 15A of the Exchange Act, or a Canadian
securities exchange or association for any act or omission to act constituting
conduct inconsistent with just and equitable principles of trade; or (v) is
subject to a United States Postal Service false representation order entered
under Section 3005 of Title 39, United States Code, or is subject to a
restraining order or preliminary injunction entered under Section 3007 of Title
39, United States Code, with respect to conduct alleged to have violated Section
3005 of Xxxxx 00, Xxxxxx Xxxxxx Code.
3.22 Stock Collateral
None of
the Company’s obligations to any third party are secured by any of the Company’s
outstanding securities.
3.23 Reaffirmation
All of
the representations, warranties and covenants of the Company set forth in this
Agreement or in any letter or certificate furnished to Placement Agent pursuant
hereto, each of which is incorporated herein by reference and made a part
hereof, shall be true in all material respects upon the execution of this
Agreement.
4. Representations and
Warranties of the Placement Agent The
Placement Agent represents and warrants as follows:
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 12
4.1 Due Incorporation
The
Placement Agent is duly incorporated and validly existing and in good standing
under the laws of its state of incorporation and is duly qualified as a foreign
corporation for the transaction of business and is in good standing in each
jurisdiction where the failure to be so qualified would have a materially
adverse effect on the business of the Placement Agent.
4.2 Broker/Dealer
Registration The
Placement Agent is registered as a broker-dealer under Section 15 of the
Exchange Act.
4.3 Good Standing
The
Placement Agent is a member in good standing of the NASD and no proceedings are
pending or to the Placement Agent’s knowledge, threatened, to revoke or limit
such status.
4.4 Sale in Certain
Jurisdictions Sales of
Shares by the Placement Agent will be made only in such jurisdictions in which
(i) the Placement Agent is a registered broker-dealer or where an applicable
exemption from such registration exists and (ii) the Offering and sale of
Securities is registered under, or is exempt from, applicable registration
requirements.
4.5 Compliance with Laws
Offers
and sales of Shares by the Placement Agent will be made in compliance with the
provisions of Rule 506 of Regulation D and/or Section 4(2) of the Act, and the
Placement Agent will furnish to each investor a copy of the Offering Documents
prior to accepting any payments for Shares.
4.6 Sale to Accredited
Investors, No General Solicitation. The Placement Agent understands that
the Securities have not been registered under the Securities Act or any Blue Sky
law of any state and may not be offered or sold except pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act and such Blue Sky laws. The Placement Agent agrees that it will
not solicit offers for, or offer or sell, the Securities by any form of general
solicitation or general advertising within the meaning of Section 4(2) of the
Securities Act, and Rule 506 thereunder. The Placement Agent further
agrees to not offer or sell or arrange for the offer or sale of the Securities
except (i) to those the Placement Agent reasonably believes are “accredited
investors” (as defined in Rule 501 of Regulation D), or (ii) in any other manner
that does not require registration of the Securities under the Securities
Act.
4.7 Due Authorization.
The Placement Agent has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement between the Company and
the Placement Agent, and this Agreement will be duly authorized and validly
executed and delivered by the Placement Agent and constitutes a legal, valid and
binding agreement of the Placement Agent enforceable against the Placement Agent
in accordance with its terms.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 13
5. Closing.
At or
prior to each closing, and as a condition of the Placement Agent’s obligations
hereunder, the following shall have been satisfied: (i) the Company
shall have delivered to the Placement Agent at the closing (a) a certificate of
the Company, signed by two executive officers thereof, stating the
representations and warranties contained herein are true and correct as of the
date of such closing as if, and to the same effect, the warranties and
representations were made on such date; (b) Subscription Agreements
signed by the Company; (c) Consents of any party required to consummate this
Offering and the transactions contemplated thereby; and (d) such
other closing documents as shall be reasonably requested by the Placement Agent
and/or its counsel.
5.1 Placement Agent’s Fees and
Expenses At the
Initial Closing, and at each subsequent Closing, the Company shall pay to the
Placement Agent a commission equal to ten (10%) percent of the aggregate
purchase price of the shares sold by the Placement Agent plus up to three (3%)
percent Non-Accountable Expense Allowance of the aggregate purchase price of
each share sold. The Retainer Amount will be applied against the Non Accountable
Expenses Allowance, and the Placement Agent will be entitled only to the
difference between them, if any. In any event, the total Expenses of Offering
payable by the Company shall not exceed thirty six thousand dollars ($36,000).
The company will also issue to the Placement Agent shares of common stock equal
to ten percent (10%) of the total number of shares of common stock issued to the
Subscribers.
5.2 Additional Finder’s
Fee. In the
event that at any time prior to the second (2nd)
anniversary of the final Closing (as defined in the Placement Agent Agreement)
the Company or any of its affiliates shall enter into any transaction
(including, without limitation, any merger, consolidation, acquisition,
financing, joint venture or other arrangement) with any party introduced to the
Company directly by the Placement Agent, which party is listed in Exhibit A attached
hereto or is added to Exhibit A by the Placement Agent throughout the term of
this Agreement, during
such period, the Placement Agent will be paid a transaction fee, payable at the
closing thereof, equal to a percentage of the consideration or value received by
the Company and/or its stockholders as follows: (a) 5% of the first
$1,000,000, (b) 4% of the next $1,000,000, (c) 3% of the next
$1,000,000, (d) 2% of the next $1,000,000, and (e) 1% of all amounts
in excess of $4,000,000 [or whatever arrangement you deem appropriate]. In no
event shall the fees payable pursuant to this paragraph together with any
other fees paid to the Placement Agent by the Company shall exceed the maximum
finder's fee allowed by the Financial Industry Regulatory Authority (“FINRA”) at
the time of such transaction.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 14
6. Covenants
The
Company covenants and agrees that:
6.1 Expenses of Offering and
Other Expenses The
Company shall be responsible for, and shall pay, all fees, disbursements and
expenses incurred in connection with the Offering, including, but not limited
to, the Company’s legal and accounting fees and disbursements, the costs of
preparing, printing, mailing and delivering, and filing, where necessary, the
Offering Documents and all amendments and supplements thereto (in such
quantities as the Placement Agent may reasonably require), the costs of any “due
diligence” meeting held by the Company as requested by the Placement Agent, the
fees and disbursements of the Placement Agent counsel. The total Expenses of
Offering and Other Expenses in accordance with this Section shall not exceed
thirty six thousand dollars ($36,000).
6.2 Further Assurances
The
Company will take such actions as may be reasonably required or desirable to
carry out the provisions of this Agreement and the transaction contemplated
hereby.
7. Indemnification and
Contribution.
7.1 Indemnification by the
Company The
Company agrees to indemnify and hold harmless the Placement Agent and each
person, if any, who controls the Placement Agent within the meaning of the
Securities Act and/or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which the Placement Agent or such controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in the Offering Documents, or (B) in
any blue sky application or other document executed by the Company specifically
for blue sky purposes or based upon any other written information furnished by
the Company or on its behalf to any state or other jurisdiction in order to
qualify any or all of the Securities under the securities laws thereof (any such
application, document or information being hereinafter called a “Blue Sky
Application”), (ii) any breach by the Company of any of its representations,
warranties or covenants contained herein or in any of the Subscription
Agreements, or (iii) the omission or alleged omission by the Company to state in
the Offering Documents or in any Blue Sky Application a 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; and will reimburse
the Placement Agent and each such controlling person for any legal or other
expenses reasonably incurred by the Placement Agent or such controlling person
in connection with investigating or defending any such loss, claim, damage,
liability or action, whether arising out of an action between the Placement
Agent and a third party; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information regarding the Placement Agent which is
furnished to the Company by the Placement Agent specifically for inclusion in
the Offering Documents or any such Blue Sky Application or (ii) any breach by
the Placement Agent of the representations, warranties or covenants contained
herein (together, (i) and (ii) above are referred to as the “Non-indemnity
Events”).
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 15
7.2 Indemnification by the
Placement Agent The
Placement Agent agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the Securities
Act and/or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which the Company or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
Non-Indemnity Event; and will reimburse the Company and each such controlling
person for any legal or other expenses reasonably incurred by the Company or
such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action provided that such loss, claim, damage
or liability is found ultimately to arise out of or be based upon any
Non-Indemnity Event.
7.3 Procedure
Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7,
notify in writing the indemnifying party of the commencement thereof; and the
omission so to notify the indemnifying party will relieve the indemnifying party
from any liability under this Section 6 as to the particular item for which
indemnification is then being sought, but not from any other liability which it
may have to any indemnified party. In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel who shall
be to the reasonable satisfaction of such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof. Any such indemnifying party shall not be liable to any such
indemnified party on account of any settlement of any claim or action effected
without the consent of such indemnifying party.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 16
7.4 Contribution
If the
indemnification provided for in this Section 7 is unavailable to any indemnified
party (other than as a result of the failure to notify the indemnifying party as
provided in Section 7.3 hereof) in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party, in
lieu of indemnifying such indemnified party, will contribute to the amount paid
or payable by such indemnified party, as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand, and the
Placement Agent, on the other hand, from the Offering, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above, but also the relative fault of the Company, on the one
hand , and of the Placement Agent, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Placement Agent, on the other hand, shall be deemed to be in
the same proportion as the total proceeds from the Offering (net of sales
commissions, but before deducting other expenses) received by the Company bear
to the commissions received by the Placement Agent. The relative
fault of the Company, on the one hand, and the Placement Agent, on the other
hand, will be determined with reference to, among other things, whether the
untrue or alleged untrue statement of a material fact of the omission to state a
material fact relates to information supplied by the Company, on the one hand,
and the Placement Agent, on the other hand, and their relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
7.5 Equitable
Considerations The
Company and the Placement Agent agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any method of allocation which does not take into account the equitable
consideration referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
7.6 Attorneys’ Fees
The
amount payable by a party under this Section 7 as a result of the losses,
claims, damages, liabilities or expenses referred to above will be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim (including,
without limitation, fees and disbursements of counsel incurred by an indemnified
party in any action or proceeding between the indemnifying party and indemnified
party or between the indemnified party and any third party or
otherwise).
8. Termination
Prior to
the completion of the Offering Documents and the commencement of the Offering,
either party may terminate this Agreement by giving a prior written notice to
the other party, provided that the terminating party agrees to reimburse the
other party in full for its reasonable out-of-pocket expenses (including,
without limitation, its legal fees and disbursements), up to a maximum of
$10,000. Following the completion of the Offering Documents and the commencement
of the Offering, each of the Company and the Placement Agent will have the right
to terminate this Agreement for any reason by giving a 30-day prior written
notice to the other party, or, immediately upon notice at any time, at or prior
to the Initial Closing: (a) if the other party shall have failed,
refused, or been unable to perform any of its obligations hereunder, or breached
any of its representations or warranties hereunder; or (b) if, in the Placement
Agent’s or the Company’s reasonable opinion, there has occurred an event
materially affecting the value of the Securities. If the Placement
Agent elects not to proceed with the Offering as a result of the condition
enumerated in clause (a) above, or the Company elects not to proceed with the
Offering for any reason other than the Placement Agent’s failure to proceed
expeditiously with the Offering, the Company shall reimburse the Placement Agent
in full for its reasonable out-of-pocket expenses (including, without
limitation, its legal fees and disbursements), up to a maximum of $10,000. If
the Company elects not to proceed with the Offering as a result of the condition
enumerated in clause (a) above, or the Placement Agent elects not to proceed
with the Offering for any reason other than the Company’s failure to proceed
expeditiously with the Offering, the Placement Agent shall reimburse the Company
in full for its reasonable out-of-pocket expenses (including, without
limitation, its legal fees and disbursements), up to a maximum of
$10,000.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 17
9. Competing Claims
The
Company acknowledges and agrees that the Placement Agent will not proceed to
perform hereunder until it receives assurances, in form and substance
satisfactory to the Placement Agent and their counsel, that as of the first date
that the Offering Documents are presented to potential purchasers of Shares,
there will be no claims or payments for services in the nature of a finder’s fee
with respect to the Offering or any other arrangements, agreements, payments,
issuances or understandings that may affect the Placement Agent’s compensation
hereunder other than any claims that may be made by the Placement Agent’s own
personnel. The
Placement Agent shall compensate any of its personnel who may have acted in such
capacities, as it shall determine.
10. Miscellaneous.
(a) Governing
Law. This Agreement will be deemed to have been made and
delivered in the State of New York and will be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
law of the State of New York, without regard to principles of conflicts of
law. The Company (i) agrees that any legal suit, action or proceeding
arising out of or relating to this Agreement shall be instituted exclusively in
the Supreme Court of New York, or in the United States District Court for the
Southern District of New York, (ii) waives any objection to the venue of any
such suit, action or proceeding, and the right to assert that such forum is an
inconvenient forum, and (iii) irrevocably consents to the jurisdiction of the
Supreme Court of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. The
Company further agrees to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the Supreme Court
of New York or the United States District Court for the Southern District of New
York and agrees that service of process upon it mailed by certified mail to its
address shall be deemed in every respect effective service of process upon it in
any such suit, action or proceeding.
(b) Counterparts. This
Agreement may be executed in any number of counterparts each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 18
(c) Parties. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. Neither party may assign
this Agreement or its obligations hereunder without the prior written consent of
the other party. This Agreement is intended to be, and is, for the
sole and exclusive benefit of the parties hereto and the persons described in
Section 6.1 and 6.2 hereof and their respective successors and assigns, and for
the benefit of no other person, and no other person will have any legal or
equitable right, remedy or claim under, or in respect of this
Agreement.
(d) Amendment and/or
Modification. Neither this Agreement, nor any term or
provision hereof, may not be changed, waived, discharged, amended, modified or
terminated orally, or in any manner other than by an instrument in writing
signed by each of the parties hereto.
(e) Validity. In
case any term of this Agreement will be held invalid, illegal or unenforceable,
in whole or in part, the validity of any of the other terms of this Agreement
will not in any way be affected thereby.
(f) Waiver of
Breach. The failure of any party hereto to insist upon strict
performance of any of the covenants and agreements herein contained, or to
exercise any option or right herein conferred in any one or more instances, will
not be construed to be a waiver or relinquishment of any such option or right,
or of any other covenants or agreements, and the same will be and remain in full
force and effect.
(g) Further
Assurances. Each party to this Agreement will perform any and
all acts and execute any and all documents as may be necessary and proper under
the circumstances in order to accomplish the intents and purposes of this
Agreement and to carry out its provisions.
11. Entire
Agreement. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and
thereof, respectively, and there are no representations, inducements, promises
or agreements, oral or otherwise, not embodied in this Agreement. Any
and all prior discussions, negotiations, commitments and understanding relating
to the subject matter of these agreements are superseded by them.
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[SIGNATURE
PAGES FOLLOW]
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 19
If you
find the foregoing is in accordance with our understanding, kindly sign and
return to us a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between us.
| Very truly yours, | |||
|
Accelerize
New Media, Inc.
|
|||
|
|
By:
|
/s/ Xxxxx Xxxx
|
|
| Xxxxx Xxxx | |||
| Chief Executive Officer | |||
AGREED
TO:
SKYEBANC,
INC.
| By: |
/s/ Xxxxx Xxxxxxxx
Xx.
|
|
|||
|
Xxxxx
Xxxxxxxx Xx.
|
|
||||
| Vice President of Private Equity |
|
Private
Placement Agent’s Agreement for Accelerize New Media, Inc.
Page 20
EXHIBIT
A
LIST
OF INVESTORS INTRODUCED TO THE COMPANY
BY
THE PLACEMENT AGENT
