Exhibit 10.31
PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("AGREEMENT") is made as of the 9th day of April
2003, by and between Applied Digital Solutions, Inc., the ("COMPANY"), and,
X.X. Xxxxx Securities Inc., a Georgia corporation (the "AGENT").
WITNESSETH:
WHEREAS, the Company desires to consider strategic alternatives
available to it which include, but are not limited to, issuing and selling
equity of the Company in the amount of up to 50,000,000 shares.
WHEREAS, the Agent has offered to assist the Company in the
procurement, if necessary, of potential purchasers of the Company's equity
and the Company desires to secure the services of the Agent on the terms and
conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises, conditions and covenants herein contained, the parties hereto do
hereby agree as follows:
1. Engagement of Agent. The Company hereby appoints the Agent as
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non-exclusive Agent to procure potential purchasers of the Company's equity
(the "AGENT SERVICES"). The Agent, on the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, accepts such appointment. This appointment shall be irrevocable
for the period commencing as of the date hereof and ending upon the
termination of the Agreement in accordance with Section 7 hereof (the
"TERM").
2. Representations and Warranties of the Company. In order to
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induce the Agent to enter into this Agreement, the Company hereby represents
and warrants to and agrees with the Agent as follows:
(a) Accuracy of Information. All information provided by the
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Company to the Agent regarding the Company is true and does not omit any
material fact necessary to make such information, in light of the
circumstances under which it was delivered, not misleading. If during the
Term, any event occurs or any event known to the Company relating to or
affecting the Company and/or the Agent shall occur as a result of which the
information provided to the Agent becomes incorrect or misleading, the
Company shall inform the Agent of such occurrence within a reasonable period
of time.
(b) No Defaults. The execution and delivery of this Agreement, and
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the consummation of the transactions herein contemplated, and compliance
with the terms of this Agreement will not conflict with or result in a
breach of any of the terms, conditions or provisions of, or constitute a
default under, the Articles of Incorporation or By-Laws of the Company (in
any respect that is material to the Company), any material note, indenture,
mortgage, deed of trust, or other agreement or instrument to which the
Company is a party or by which the Company or any property of the Company is
bound, or to the Company's knowledge, any existing law, order, rule,
regulation, writ, injunction or decree of any government,
governmental instrumentality, agency or body, arbitration tribunal or court,
domestic or foreign, having jurisdiction over the Company or any property of
the Company.
(c) Incorporation and Authorization. The Company is duly formed and
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validly existing in good standing as a corporation under the laws of the
State of its incorporation. The execution and delivery by the Company of
this Agreement have been duly authorized by all necessary action, and this
Agreement is the valid, binding and legally enforceable obligation of the
Company.
3. Representations and Warranties of the Agent. In order to induce
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the Company to enter into this Agreement, the Agent hereby represents and
warrants to and agrees with the Company as follows:
(a) No Defaults. The execution and delivery of this Agreement, and
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the consummation of the transactions herein contemplated, and compliance
with the terms of this Agreement will not conflict with or result in a
breach of any of the terms, conditions or provisions of, or constitute a
default under, the Articles of Incorporation or By-Laws of the Agent (in any
respect that is material to the Agent), any material note, indenture,
mortgage, deed of trust, or other agreement or instrument to which the Agent
is a party or by which the Agent or any property of the Agent is bound, or
to the Agent's knowledge, any existing law, order, rule, regulation, writ,
injunction or decree of any government, governmental instrumentality, agency
or body, arbitration tribunal or court, domestic or foreign, having
jurisdiction over the Agent or any property of the Agent.
(b) Incorporation and Authorization. The Agent is duly formed and
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validly existing in good standing as a corporation under the laws of the
State of its incorporation. The execution and delivery by the Agent of this
Agreement have been duly authorized by all necessary action, and this
Agreement is the valid, binding and legally enforceable obligation of the
Agent. The Agent is a registered broker-dealer with the Securities and
Exchange Commission and a member in good standing of the National
Association of Securities Dealers, Inc. and the Agent has full authority to
engage in the contemplated transaction.
4. Placement/Underwriter's Fee. The Company shall pay the Agent a
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fee of three percent (3%) of the gross subscription proceeds of an equity
offering by the Company from purchasers procured by the Agent or purchasers
represented or deemed to be represented by the Agent as Underwriter;
provided such subscriptions are accepted by the Company. All fees are to be
paid out of escrow.
5. Non-Circumvention. The Company hereby agrees as follows:
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The Company agrees to maintain the confidentiality of the
Agent's clients, except as required by applicable law. Such clients shall be
those entities or individuals that the Agent has procured for investment in
the Company (the "CLIENTS"). For a period of two (2) years from the
termination of this Agreement, the Company will not solicit or enter into
any transaction covered by this Agreement with the Clients without the
written consent of the Agent.
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6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Agent and
the Agent's employees, accountants, attorneys and agents (the "AGENT'S
INDEMNITEES") against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under any
statute or at common law for any legal or other expenses (including the
costs of any investigation and preparation) incurred by them in connection
with any litigation, whether or not resulting in any liability, but only
insofar as such losses, claims, damages, liabilities and litigation arise
out of or are based upon a breach of this Agreement; provided, however, that
the indemnity agreement contained in this Section 6(a) shall not apply to
amount paid in settlement of any such litigation, if such settlements are
made without the consent of the Company, nor shall it apply to the Agent's
Indemnitees in respect to any such losses, claims, damages or liabilities
arising out of or based upon any breach on their part of this Agreement.
This indemnity is in addition to any other liability the Company may
otherwise have to the Agent's Indemnitees. The Agent's Indemnitees agree,
within ten (10) days after the receipt by them of written notice of the
commencement of any action against them in respect to which indemnity may be
sought from the Company under this Section 6(a), to notify the Company in
writing of the commencement of such action; and if the Agent's Indemnitees
shall notify the Company of the commencement thereof, the Company shall be
entitled to participate in (and, to the extent that the Company shall wish,
to direct) the defense thereof at its own expense, but such defense shall be
conducted by counsel of recognized standing and reasonably satisfactory to
the Agent's Indemnitees, defendant or defendants, in such litigation. The
Company agrees to notify the Agent's Indemnitees promptly of the
commencement of any litigation or proceedings against the Company or any of
the Company's officers or directors of which the Company may be advised in
connection with this Agreement and to furnish to the Agent's Indemnitees, at
their request, to provide copies of all pleadings therein and to permit the
Agent's Indemnitees to be observers therein and apprise the Agent's
Indemnitees of all developments therein, all at the Company's expense.
(b) The Agent agrees, in the same manner and to the same extent as
set forth in Section 6(a) above, to indemnify and hold harmless the Company
and the Company's employees, accountants, attorneys and agents (the
"COMPANY'S INDEMNITEES") with respect to any breach of any representation,
warranty or covenant made by the Agent in this Agreement, or with respect to
any claims arising out of any information provided by the Agent to the
Company in writing for the express purpose of inclusion in a registration
statement.
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7. Termination.
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(a) This Agreement will terminate automatically on July 30, 2003 or
may be terminated by either party upon thirty (30) days prior
written notice.
(b) Any termination of this Agreement pursuant to this Section
shall be without liability of any character (including, but not
limited to, loss of anticipated profits or consequential
damages) on the part of any party thereto, except that the
Company shall remain obligated to pay the costs and expenses
provided to be paid by it specified in Section 4; and the
Company and the Agent shall be obligated to pay, respectively,
all losses, claims, damages or liabilities, joint or several,
under Section 6 hereof.
8. Best Efforts. The Company expressly acknowledges and agrees that
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Agent's obligations hereunder are on a reasonable best efforts basis only
and that the execution of this Agreement does not constitute a commitment by
Agent to purchase any securities and does not ensure the successful
placement of any securities or any portion thereof or the success of Agent
with respect to securing any other financing on behalf of the Company.
9. Miscellaneous.
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(a) Notice. Whenever notice is required by the provisions of this
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Agreement to be given to the Company, such notice shall be in writing,
addressed to the Company, at:
If to Company: Applied Digital Solutions, Inc.
000 Xxxxx Xxxx Xxx, Xxx. 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Fax: (000) 000 0000
Whenever notice is required by the provisions of this Agreement to be given
to the Agent, such notice shall be given in writing, addressed to the Agent,
at:
If to the Agent: X.X. Xxxxx Securities, Inc.
Atlanta Financial Center, East Tower
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
(b) Governing Law. The validity, interpretation, and construction
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of this Agreement will be governed by the Laws of the State of Georgia.
(c) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be deemed an original and all of which
together will constitute one and the same instrument.
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(d) Confidential Information. All confidential financial or
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business information (except publicly available or freely usable material
otherwise obtained from another source) respecting either party will be used
solely by the other party in connection with the within transactions, be
revealed only to employees or contractors of such other party who are
necessary to the conduct of such transactions, and be otherwise held in
strict confidence.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly caused this
Agreement to be executed as of the day and year first above written.
COMPANY
APPLIED DIGITAL SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chairman, CEO
AGENT
X.X. Xxxxx Securities, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
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