[GRAPHIC OMITTED]
--------------------------------------------------------------------------------
PLACEMENT AGENT AGREEMENT
This agreement (the "Agreement"), made as of this 17th day of April, 2006, by
and between Manaris Corporation, a Nevada corporation, (the "Company"), with its
principal place of business at 0000 Xxxx-Xxxxxxxx Xxxx. Xxxx Xxxxx 0000,
Xxxxxxxx X0 X0X 0X0 and MIDTOWN PARTNERS & CO., LLC, (the "Placement Agent",
"Midtown" or "Midtown Partners), a Florida limited liability company, with its
principal place of business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxx 00000, confirms the understanding and agreement between the Company and
the Placement Agent as follows:
SECTION I
The Company hereby engages the Placement Agent as the Company's
exclusive placement agent in connection with a proposed private placement in the
United States (the "Offering") of up to five million dollars (US$5,000,000) of
the Company's securities (the "Financing"). The Offering will be made to solely
"accredited investors" (the "Accredited Investors"), as such term is defined in
Rule 501(a) of Regulation D ("Regulation D") promulgated under the United States
Securities Act of 1933, as amended (the "Securities Act"), pursuant to an
exemption from registration under applicable federal and state securities laws
available under Rule 506 of Regulation D and in accordance with the terms of
this Agreement. The terms and conditions of the Financing shall be similar to
those terms and provisions as attached in Exhibit A hereto subject to a final
term Sheet to be set forth at a later date to be approved by the Company. The
Placement Agent hereby accepts such engagement upon the terms and conditions set
forth in this Agreement. This Agreement shall not give rise to any commitment or
obligation by the Placement Agent to purchase any of the Financing or, except as
set forth herein, to find purchasers for the Financing.
The Placement Agent shall provide the following services (the "Services"):
(a) Advise the Company with regard to the size of the Offering and the
structure and terms of the Financing in light of the current market environment;
(b) Assist the Company in identifying and evaluating prospective qualified
Accredited Investors;
(c) Approach such investors on a "best efforts basis" regarding an
investment in the Company; and
(d) Work with the Company to develop a negotiating strategy and assist
with the negotiations with such potential investors.
In connection with the Placement Agent providing the Services, the Company
agrees to keep the Placement Agent up to date and apprised of all material
business, market and legal developments related to the Company and its
operations and management. The Placement Agent shall devote such time and
effort, as it deems commercially reasonable under the circumstances in rendering
the Services. The Placement Agent shall not provide any work that is in the
ordinary purview of a certified public accountant. The Placement Agent cannot
guarantee results on behalf of the Company, but shall pursue all avenues that it
deems reasonable through its network of contacts.
SECTION II
The Placement Agent, its affiliates and any person acting on its or their
behalf hereby represent, warrant and agree as follows (the "Placement Agent
Parties"):
(a) The Financing offered and sold by the Placement Agent have been and
will be offered and sold in compliance with all federal and state securities
laws and regulations governing the registration and conduct of broker-dealers,
and each Placement Agent Party making an offer or sale of Financing was or will
be, at the time of any such offer or sale, registered as a broker-dealer
pursuant to Section 15(b) of the United States Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and under the laws of each applicable state of
the United States (unless exempted from the respective state's broker-dealer
registration requirements), and in good standing with the National Association
of Securities Dealers, Inc.
(b) The Financing offered and sold by the Placement Agent have been and
will be offered and sold only to Accredited Investors in accordance with Rule
506 of Regulation D and applicable state securities laws; provided, however, the
Company shall make all necessary filings under Rule 503 of Regulation D and such
similar notice filings under applicable state securities laws. The Placement
Agent Parties represent and warrant that they have reasonable grounds to believe
and do believe that each person to whom a sale, offer or solicitation of an
offer to purchase Financing was or will be made was and is an Accredited
Investor. Prior to the sale and delivery of a Financing to any such investor,
the Placement Agent Parties will obtain an executed subscription agreement and
an executed investors' rights agreement in the form agreed upon by the Company
and the Placement Agent (the "Subscription Documents").
(c) In connection with the offers and sales of the Financing, the
Placement Agent Parties have not and will not
(1) Offer or sell, or solicit any offer to buy, any Financing by any form
of "general solicitation" or "general advertising", as such terms are used in
Regulation D, or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act;
(2) Use any written material other than the term sheet, that will be
approved by the Company at a later date, and the Placement Agent, a copy of
which is attached hereto as Exhibit A, and the Subscription Documents, and shall
only rely upon and communicate information that is publicly available regarding
the Company to any potential investors (without limiting the foregoing, none of
the Placement Agent Parties is authorized to make any representation or warranty
to any offeree concerning the Company or an investment in the Financing); or
(3) Take any action that would constitute a violation of Regulation M
under the Exchange Act.
(d) The Placement Agent shall cause each affiliate or each party acting on
its or their behalf with whom they enter into contractual arrangements relating
to the offer and sale of any Financing to agree, for the benefit of the Company,
to the same provisions contained in this Agreement.
SECTION III
During the Term (as defined below), the Placement Agent is hereby retained by
the Company to make limited introductions on a best efforts basis to provide
financing for the Company in an amount and form to be mutually determined by the
Company and the Placement Agent.
SECTION IV
The Company hereby represents, warrants and agrees as follows:
(a) This Agreement has been authorized, executed and delivered by the
Company and, when executed by the Placement Agent will constitute the valid and
binding agreement of the Company enforceable against the Company in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency or reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(b) The offer and sale of the Financing, the Shares, and the Warrants, as
defined in Exhibit A shall be exempt from registration under the Securities Act,
and will comply, in all material respects with the requirements of Rule 506 of
Regulation D promulgated under the Securities Act and any applicable state
securities laws. No documents prepared by the Company in connection with the
Offering, or any amendment or supplement thereto, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) The financial statements, audited and unaudited (including the notes
thereto), included in the Company's latest annual information form and
subsequent quarterly reports (the "Financial Statements"), present fairly the
financial position of the Company as of the dates indicated and the results of
operations and cash flows of the Company for the periods specified. Such
Financial Statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved except as otherwise stated therein.
(d) No federal, state or foreign governmental agency has issued any order
preventing or suspending the Offering.
(e) The Company is a Nevada corporation organized, existing and with
active status under the laws of Nevada, with corporate power and authority under
such laws to own, lease and operate its properties and conduct its business as
now conducted. The Company has all power, authority, authorization and approvals
as may be required to enter into this Agreement and each of the Subscription
Documents, and to carry out the provisions and conditions hereof and thereof,
and to issue and sell the Financing, the Shares, and Warrants.
(f) The Financing, the Shares, the Warrants, and common shares issuable
upon exercise of the Warrants (the "Warrant Shares"), have all been authorized
for issuance and sale pursuant to the Subscription Documents, and when issued
and delivered by the Company against payment therefore in accordance with the
terms of the Subscription Documents, will be validly issued and fully paid and
non-assessable.
(g) With the exception of any approvals required by the Securities and
Exchange Commission related to the Offering, no further approval or
authorization of any shareholder of the Company, its Board of Directors or other
person or group is required for the issuance and sale of the Financing, the
Shares, the Warrants or the Warrant Shares.
(h) Since the latest unaudited financial statements there has not been any
(A) material adverse change in the business, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company, (B)
transaction that is material to the Company, except transactions in the ordinary
course of business, (C) obligation that is material to the Company, direct or
contingent, incurred by the Company, except obligations incurred in the ordinary
course of business, (D) change that is material to the Company or in the common
shares or outstanding indebtedness of the Company, or (E) dividend or
distribution of any kind declared, paid, or made in respect of the common
shares.
SECTION V
The parties agree that the close of the Offering (the "Closing") shall be
subject to the satisfaction of the following conditions, unless expressly waived
in writing by the parties:
(a) The Offering shall not be subject to any regulatory or judicial
proceeding questioning or reviewing its effectiveness for the purpose of
offering the Financing for sale and issuance.
(b) The Company shall deliver a certificate of an officer of the Company
dated as of the Closing that affirms the accuracy of the representations and
warranties contained in Section IV hereof.
(c) The Placement Agent shall have received an opinion of counsel to the
Company, dated as of the Closing, that the Financing offered and sold in
compliance with this Agreement are not required to be registered under the
Securities Act.
(d) The Company shall have paid, or made arrangements satisfactory to the
Placement Agent for the payment of, all such expenses as required by Section
VIII below.
(e) The Placement Agent and the Company shall have finalized and agreed to
the form of the warrant agreement and registration rights agreement referred to
in Section VIII below.
SECTION VI
(a) The term of this Agreement shall commence on the date first written
above and shall expire the earlier of thirty (30) days after the date the
Company (1) provides the Placement Agent with requested due diligence materials
and (2) the Company and the Placement Agent mutually agree that information
documents (including, but not limited to: a business plan; executive summary;
three-year historical income statement, statement of cash flows, and balance
sheet; five-year projected financial statements; use of proceeds statement;
investor presentation; valuation analysis), to be provided and approved by the
Company, are ready for presentation to the Placement Agent's network of
potential financing sources or the closing of the Offering, unless terminated in
accordance with the provisions set forth below, or extended by the mutual
written consent of the parties hereto (the "Term"). This Agreement may be
terminated only:
(1) By either party for any reason at any time upon thirty (30) days'
prior written notice; or
(2) By the Placement Agent upon default in the payment of any amounts due
to the Placement Agent pursuant to this Agreement, if such default continues for
more than fifteen (15) days following receipt by the Company from the Placement
Agent of written notice of such default and demand for payment.
(a) In the event of termination, the Placement Agent shall be immediately
paid in full on all items of compensation and expenses (including any amounts
deferred) payable to the Placement Agent pursuant hereto, as of the date of
termination.
(b) The Placement Agent Fee or Financing Fee shall become due and payable
to PLACEMENT AGENT upon the date that the Company receives the proceeds of the
financing from the party providing the financing. A Placement Agent Fee shall
also be payable with respect to any Qualified Offering or any subsequent
Qualified Financing accepted and received by Company within twelve (12) months
after the termination or expiration of this Agreement, by any party or source of
funding introduced or facilitated by PLACEMENT AGENT to Company; or
(3) By mutual agreement of the parties.
SECTION VII
If at any time during the twelve (12) months following the termination of
this Agreement the Company conducts a Qualified Offering, the Placement Agent
shall (1) be entitled to receive commissions and fees for subscriptions received
or solicited by the Placement Agent for the Company's securities pursuant to the
terms and conditions of this Agreement, and (2) be entitled to the compensation
and fees as set forth in Section VIII of this Agreement for any Qualified
Financing received by the Company. Any compensation or fees paid pursuant to
Section VIII below shall relate only to the securities initially issued by the
Company and not the underlying securities, unless otherwise agreed to by the
Company.
"Qualified Offering" shall mean any securities issued by the Company,
other than: (1) the Units, the Warrants, the Shares or the common shares
underlying the Warrants issued pursuant to the terms and conditions of the
Offering; (2) common shares, options or other rights to purchase common shares
issued or granted to employees, officers, directors and consultants of the
Company pursuant to one or more employee stock plans or agreements approved by
the Company's board of directors; (3) securities of the Company issued or
issuable to financial institutions or lessors in connection with real estate
leases, commercial credit arrangements, equipment financings or similar
transactions approved by the Company's board of directors, including, but not
limited to, equipment leases or bank lines of credit; (4) securities issued as a
dividend or distribution on, or in connection with a split of or
recapitalization of, any of the capital stock of the Company; (5) securities
issued by the Company pursuant to strategic partnership, joint venture or other
similar arrangements approved by the Company's board of directors where the
primary purpose of the arrangement is not to raise capital; (6) securities of
the Company issued pursuant to a registration statement filed by the Company
under the Securities Act; (7) securities issued by the Company pursuant to an
acquisition of another corporation or other entity by the Corporation by merger,
purchase of all or substantially all of the capital stock or assets, or other
reorganization; or (8) securities of the Company issued pursuant to currently
outstanding options, warrants or other rights to acquire securities of the
Company.
"Qualified Financing" shall mean an investment from a person after the
termination of this Agreement that directly results from the Placement Agent's
performance of the Services hereunder during the Term of this Agreement (for the
avoidance of doubt this shall mean any solicitation of a potential investor or
an introduction of a potential investor to the Company by the Placement Agent
related to the Offering during the Term of this Agreement). The Placement Agent
agrees to provide to the Company within ten (10) days after the termination of
this Agreement (the "Delivery Deadline") a list of all persons solicited on
behalf of the Company or introduced to the Company by the Placement Agent
related to the Offering (the "Solicitation List") to assist the parties in
making a later determination as to whether a Qualified Financing has occurred.
If the Solicitation List is not provided to the Company prior to the expiration
of the Delivery Deadline, the Company's obligation to pay any commissions or
fees related to a Qualified Financing pursuant to this Section VII shall
immediately terminate. For purposes of this Agreement, receipt of Qualified
Financing shall be deemed to be received by the Company on the date that a
definitive agreement regarding the Qualified Financing is executed by the
Company and the party providing such financing. The compensation or fees shall
become payable to the Placement Agent upon the date that the Company receives
the proceeds of the Qualified Financing.
Notwithstanding anything to the contrary, if the Company conducts a
Qualified Offering during the twelve (12) months following the termination of
this Agreement, it shall not be obligated to accept any subscriptions received
by the Placement Agent or any Qualified Financing by virtue of this Section VII
and the Company reserves the right to accept or reject any such subscriptions or
Qualified Financing in whole or in part.
SECTION VIII
In consideration for the performance of the Services hereunder, the Company
hereby agrees to pay to the Placement Agent such fees ("The Placement Agent Fee
or the Financing Fee") as outlined below:
(a) If the Placement Agent receives subscriptions for Financing as a part
of the Offering (the "Placement Agent Investors"), the Company shall:
1) Pay to the Placement Agent in US dollars via wire from the attorney's
escrow at closing an amount equal to nine percent (9%) of the principal amount
of the Financing purchased by the Placement Agent Investors (the "Financing
Fee") for the first up to three million dollars ($3m), seven percent (7%)
thereafter and pay to the Placement Agent nine percent (9%) on the execution of
any Warrants purchased by the Investors.
2) On each closing date of a Financing on which aggregate consideration is
paid or becomes payable to the Company for its Equity Securities, the Company
shall issue to the Placement Agent or its permitted assigns warrants (the
"Warrants") to purchase such number of shares of the common stock of the Company
equal to eight and one quarter percent (8 1/4%) of the aggregate number of
shares of common stock of the Company issued and issuable by the Company under
and in connection with the Financings. The Warrants shall have a five (5) year
term and shall provide for cashless exercise (even if the Purchasers do not have
such right), if the Warrants are not registered within one year of Closing, and
have terms and conditions identical to the Warrants purchased by the Purchasers,
including, without limitation, anti-dilution and full ratchet provisions to take
into account any issuance of additional shares of common stock as a result of an
adjustment to the Securities or the shares of common stock underlying the
Securities. The Warrants shall be exercisable after the date of issuance and
shall expire five (5) years after the date of issuance, unless otherwise
extended by the Company. The Warrants shall include anti-dilution protection,
including protection against issuances of securities at prices (or with exercise
prices, in the case of warrants, options or rights) below the exercise price of
the Warrants. The Warrants shall not be callable or redeemable. The Warrants
shall also piggyback registration rights. The Warrants shall be transferable
within MIDTOWN PARTNERS, at the Placement Agent's discretion.
An escrow with a third party agent approved by the parties hereto will be
used for each closing to which the Placement Agent shall be a party. All
consideration due the Placement Agent shall be paid to the Placement Agent
directly there from.
3) Cause its affiliates to, pay to the Placement Agent all compensation
described in this Section VIII with respect to all Securities sold to a
purchaser or purchasers at any time prior to the expiration of thirty-six (36)
months after the expiration of this Agreement (the "Tail Period") if (i) such
purchaser or purchasers were identified to the Company by the Placement Agent
during the Term authorized, (ii) the Placement Agent advised the Company with
respect to such purchaser or purchasers during the Term authorized or (iii) the
Company or the Placement Agent had discussions with such purchaser or purchasers
during the Term authorized.
4) The Company agrees to pay one percent (1%) of the principal amount of
the Offering purchased by the Placement Agent Investors (the "Non-accountable
Fee") which will be used to pay Placement Agent expenses including fees such as
its legal fees, entertainment expenses, travel, etc.
(a) It is acknowledged and agreed that the Company shall bear all costs
and expenses incident to the issuance, offer, sale and delivery of the
Financing. These costs and expenses will include but are not limited to state
"Blue Sky" fees, legal fees, printing costs, travel costs, mailing, couriers,
personal background checks, and other expenses incidental to the advancement and
completion of the Offering. Full payment of Placement Agent's expenses shall be
made in same day funds at the Closing or, if the Offering is terminated for any
reason, within ten (10) days of receipt by the Company of a written request from
the Placement Agent for reimbursement of expenses, including documentation
therefore satisfactory to the Company.
5) Subject to the other requirements set forth in this Agreement, the
Placement Agent may introduce investors to the Offering directly or through
other NASD member broker-dealers. If the Placement Agent utilizes any
intermediaries, the Placement Agent shall be the Company's point of contact, not
the intermediary, and the Placement Agent, not the Company, shall be responsible
for any compensation arrangement with the intermediary. The Company's sole
compensation arrangement, responsibility and obligation are with the Placement
Agent. The Placement Agent will disclose the identity and compensation
arrangements with all of its intermediaries in order to allow the Company to
adequately disclose such arrangements, where necessary.
SECTION IX
The Company agrees to indemnify the Placement Agent and hold it harmless
against any losses, claims, damages or liabilities incurred by the Placement
Agent, in connection with, or relating in any manner, directly or indirectly, to
the Placement Agent rendering the Services in accordance with the Agreement,
unless it is determined by a court of competent jurisdiction that such losses,
claims, damages or liabilities arose out of the Placement Agent's breach of this
Agreement, sole negligence, gross negligence, willful misconduct, dishonesty,
fraud or violation of any applicable law. Additionally, the Company agrees to
reimburse the Placement Agent immediately for any and all expenses, including,
without limitation, attorney fees, incurred by the Placement Agent in connection
with investigating, preparing to defend or defending, or otherwise being
involved in, any lawsuits, claims or other proceedings arising out of or in
connection with or relating in any manner, directly or indirectly, to the
rendering of any Services by the Placement Agent in accordance with the
Agreement (as defendant, nonparty, or in any other capacity other than as a
plaintiff, including, without limitation, as a party in an interpleader action);
provided, however, that in the event a determination is made by a court of
competent jurisdiction that the losses, claims, damages or liability arose
primarily out of the Placement Agent's breach of this Agreement, sole
negligence, gross negligence, willful misconduct, dishonesty, fraud or any
violation of any applicable law, the Placement Agent will remit to the Company
any amounts for which it had been reimbursed under this paragraph. The Company
further agrees that the indemnification and reimbursement commitments set forth
in this paragraph shall extend to any controlling person, strategic alliance,
partner, member, shareholder, director, officer, employee, agent or
subcontractor of the Placement Agent and their heirs, legal representatives,
successors and assigns.
The Placement Agent agrees to indemnify the Company and to hold it
harmless against any losses, claims, damages or liabilities incurred by any of
them, in connection with, or relating in any manner, to the gross negligence,
willful misconduct, dishonesty, fraud or violation of any applicable law (a
"Claim Against the Placement Agent"). Additionally, the Placement Agent agrees
to reimburse the Company immediately for any and all expenses, including,
without limitation, attorney fees, incurred by the Company in connection with
investigating, preparing to defend or defending, or otherwise being involved in,
any lawsuits, claims or other proceedings arising out of or in connection with
or relating in any manner, directly or indirectly, to a Claim Against the
Placement Agent; provided, however, that in the event a determination is made by
a court of competent jurisdiction that the losses, claims, damages or liability
arose primarily out of the Company's breach of this Agreement, sole negligence,
gross negligence, willful misconduct, dishonesty, fraud or any violation of any
applicable law, the Company will remit to the Placement Agent any amounts for
which it had been reimbursed under this paragraph. The Placement Agent further
agrees that the indemnification and reimbursement commitments set forth in this
paragraph shall extend to any controlling person, strategic alliance, partner,
member, shareholder, director, officer, employee, agent or subcontractor of the
Company and their heirs, legal representatives, successors and assigns.
The provisions set forth in this Section IX shall survive any termination
of this Agreement.
SECTION X
All notices, demands or other communications given hereunder shall be in writing
and shall be deemed to have been duly given when delivered in person or
transmitted by facsimile transmission or the fifth calendar day after being
mailed by registered or certified mail, return receipt requested, postage
prepaid, to the addresses herein above first mentioned or to such other address
as any party hereto shall designate to the other for such purpose manner herein
set forth.
SECTION XI
Governing Law. The subject matter of this Agreement shall be governed by and
construed in accordance with the laws of the State of Florida (without reference
to its choice of law principles), and to the exclusion of the law of any other
forum, without regard to the jurisdiction in which any action or special
proceeding may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL
JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN PALM BEACH
COUNTY, FLORIDA FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION
WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS
AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS
CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL INDUCEMENT FOR THIS AGREEMENT,
EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ISSUES SO
TRIABLE. If it becomes necessary for any party to institute legal action to
enforce the terms and conditions of this Agreement, the prevailing party may be
awarded reasonable attorneys fees, expenses and costs.
Confidentiality. The Placement Agent may acquire certain non-public
information respecting the business of the Company in connection with the
performance of services hereunder, including information, which is reasonably
understood to be proprietary or confidential in nature (collectively,
"Confidential Information"). The Placement Agent hereby agrees that all
Confidential Information shall be kept strictly confidential by the Placement
Agent and its affiliates, members, partners, shareholders, managers, directors,
officers, employees, advisors, agents, and controlling persons (collectively,
"Representatives"), except that Confidential Information or portions thereof may
be disclosed to Representatives who need to know such information for the
purpose of enabling the Placement Agent to perform services hereunder (it being
understood that prior to such disclosure, such Representative will be informed
by the Placement Agent of the confidential nature of such Confidential
Information and shall agree to be bound by this Agreement). The Placement Agent
shall be responsible for any breach of this provision by any of its
Representatives. For purposes hereof, Confidential Information shall not include
any information which (i) at the time of disclosure or thereafter is or becomes
generally known by the public (other than as a result of its disclosure by the
Placement Agent or its Representatives), (ii) was or becomes available to the
Placement Agent on a non-confidential basis from a person who is not subject to
a confidentiality agreement concerning that information, or (iii) is required by
law to be disclosed by the Placement Agent (provided that if such disclosure is
required by order of a court or administrative agency, the Placement Agent shall
notify the Company as soon as possible so that the Company may seek a protective
order).
Assignments and Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. The rights and obligations of the parties under this
Agreement may not be assigned or delegated without the prior written consent of
both parties, and any purported assignment without such written consent shall be
null and void.
Modification and Waiver. Only an instrument in writing executed by the
parties hereto may amend this Agreement. The failure of any party to insist upon
strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature,
or any other nature.
Construction. The captions used in this Agreement are provided for
convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement.
Facsimile Signatures. Facsimile transmission of any signed original
document, and re-transmission of any signed facsimile transmission, shall be the
same as delivery of an original. At the request of either party, the parties
shall confirm facsimile transmitted signatures by signing an original document.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which taken together shall constitute one and
the same agreement.
Severability. If any provision of this Agreement shall be invalid or
unenforceable in any respect for any reason, the validity and enforceability of
any such provision in any other respect, and of the remaining provisions of this
Agreement, shall not be in any way impaired.
Exclusive. Midtown acknowledges and agrees that it is being granted
exclusive rights with respect to the Services to be provided to the Company and
the Company is not free to engage other parties to provide services similar to
those being provided by Midtown hereunder without the prior written consent of
Midtown.
Non-Circumvention. The Company hereby irrevocably agrees not to
circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of
this Agreement. The Company agrees not to accept any business opportunity from
any third party to whom PLACEMENT AGENT introduces to the Company without the
consent of PLACEMENT AGENT, unless for each business opportunity accepted by the
Company from a third party introduced by PLACEMENT AGENT, the Company remits a
term sheet and then a contract which defines a mutually agreeable compensation
structure for PLACEMENT AGENT. In addition, the Company shall not work with,
negotiate with or enter into any equity linked financing whatsoever with any
Investor, Consultant or Placement Agent without Midtown's prior written consent.
If the Company raises capital through in any equity offering or sale or equity
linked instrument while engaged with Midtown as the exclusive Placement Agent,
the Company shall pay to Midtown all of its fees in Section VIII, even if the
Placement Agent has provided no assistance whatsoever in raising such capital.
Survivability. Neither the termination of this Agreement nor the
completion of any services to be provided by the Placement Agent hereunder,
shall affect the provisions of this Agreement that shall remain operative and in
full force and effect.
Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the subject matter of this
Agreement and supersedes all prior understandings and agreements, whether
written or oral, among the parties with respect to such subject matter.
If the foregoing correctly sets forth the understanding between the
Placement Agent and the Company, please so indicate in the space provided below
for that purpose. The undersigned parties hereto have caused this Agreement to
be duly executed by their authorized representatives, pursuant to corporate
board approval and intend to be legally bound.
Manaris Corporation MIDTOWN PARTNERS & CO., LLC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------- ----------------
Xxxx Xxxxxx, President and Xxxxx Xxxxxx, President
Chief Executive Officer
