LANE CAPITAL MARKETS, LLC
LANE
CAPITAL
MARKETS,
LLC
________________,
2006
ValueRich,
Inc.
0000
X.
Xxxxx Xxxxxxx, Xxxxx X
Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000.
Gentlemen:
This
Agreement confirms the mutual understanding and agreement between ValueRich,
Inc., a Delaware corporation (the “Company”),
and
Lane Capital Markets, LLC (the “Representative”)
in
connection with the offering and sale, on a firm-commitment basis, through
the
Representative and other broker-dealers identified on Schedule
I
attached
hereto (together with the Representative, the “Underwriters”)
of an
aggregate amount of 2,000,000 shares of common stock, par value $0.01 per
share
(the “Common
Stock”),
of
the Company (the “Shares”)
for an
initial offering price to the public of $____ per Share pursuant to a
registration statement on Form SB-2, as amended (the “Registration
Statement”),
filed
with the Securities and Exchange Commission (the “SEC”
or
the
“Commission”)
under
the
Securities Act of 1933, as amended (the “Securities
Act”).
The
offering of the Shares is further described in the Registration Statement.
Solely for purposes of covering over-allotments, if any, the Company has
agreed
to grant the Underwriters an option (the “Over-Allotment
Option”),
exercisable for a 45 day-period commencing on the date of this Agreement,
to
purchase from the Company up to an additional 300,000 Shares (the “Additional
Shares”). The Shares and the Additional Shares (collectively, the “Securities”)
are
described more fully in the Registration Statement. In addition, the Company
will issue a warrant (the “Representative’s Warrant”) to the Representative to
purchase up to 200,000 shares of Common Stock (the “Warrant Shares”) for a five
year period, beginning one year from the date of the closing of the offering,
for an exercise price equal to 200% of the initial offering price of the
Shares
and will not be redeemable by the Company.
1.
Registration
Statement.
The
Registration Statement, including the Prospectus and the exhibits filed
therewith, for the registration of the Securities under the Securities Act
will
be prepared by the Company and filed with the SEC and the applicable state
authorities. The Registration Statement, any amendments thereto, and all
documents filed by the Company with the SEC shall conform in all material
respects with the requirements of the Securities Act and the Rules and
Regulations promulgated thereunder. All financial statements contained in
the
Registration Statement and any amendment thereto shall have been reported
on by
independent certified public accountants acceptable to the Representative,
it
being agreed that Xxxxxxxx, Bierwolf & Xxxxxx, LLC, the Company’s current
independent auditors, are acceptable to Underwriter.
2.
Representations,
Warranties and Covenants of the Company.
In
order to induce the Representative to enter into this Agreement, the Company
represents, warrants and covenants as follows:
(a) Neither
the Registration Statement nor the other material to be filed with the SEC
will
contain any untrue statements of material facts nor will there be any omissions
of material fact required to be stated therein or that are necessary to make
the
statements therein not misleading, except that, as between the parties, this
covenant will not apply to any statement or omission made in reliance upon
or in
conformity with information furnished to the Company by and with respect
to the
Underwriters expressly for use in the Registration Statement or any amendment
or
supplement thereto.
2
(b) The
proposed Registration Statement, as may be amended from time to time, shall
be
submitted to the Representative for review at least five (5) business days
before the date the Company and Representative propose to file the Registration
Statement with the SEC. All amendments and supplements to the Registration
Statement shall be submitted to the Representative at least five (5) business
days prior to the date that such amendments are intended to be filed with
the
SEC, which time period may be shortened by mutual consent of the parties.
The
content of any verbal comments and copies of all comment letters received
from
the SEC shall immediately be supplied to Representative and its counsel.
The
Company will deliver to the Representative as many copies of the manually
executed and conformed Registration Statement and each amendment thereto
(including exhibits), as the Representative shall reasonably request and
at the
same time as such documents are filed with the SEC. The Company will not
allow
the Registration Statement to become effective without obtaining the prior
written consent of the Representative.
(c)
The
Company has obtained a CUSIP number for the Securities, and the Company will
use
its best efforts to register or qualify (or exempt from
registration/qualification) the Securities for offering in every state,
territory or possession of the United States (including the District of
Columbia, hereinafter referred to as a “State”) in which it plans to offer the
Securities for sale. The materials filed or to be filed with any State will
not
contain any untrue statements of material fact nor are there or will there
be
any omissions of material facts required to be stated therein that are necessary
to make the statements therein not misleading, except that, as between the
parties, this covenant will not apply to any statement or omission made in
reliance upon or in conformity with information furnished to the Company
by and
with respect to Underwriters expressly for use in the materials filed with
the
State.
3
(d)
The
outstanding capital stock of the Company has been duly and validly authorized,
issued and is fully paid and non-assessable and will conform to all statements
made in the Registration Statement, including Prospectus and relevant exhibits,
with respect thereto. The Securities have been duly and validly authorized
and,
when issued and delivered against payment as provided in this Agreement,
will be
validly issued, fully paid and non-assessable.
(e)
The
Shares and Additional Shares are validly authorized, and when issued and
delivered in accordance with this Agreement, will be validly issued, fully
paid
and nonassessable, without any personal liability attaching to the ownership
thereof, and will not be issued in violation of any preemptive or similar
rights
of stockholders, and the holders thereof will receive good title to the Shares
and Additional Shares free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders’ agreements and voting trusts. The Shares
and Additional Shares conform to all statements relating thereto in the
Registration Statement and Prospectus.
(f)
The
Representative’s Warrant is validly authorized for issuance and the Warrant
Shares are validly authorized and validly reserved for issuance, and when
issued
and delivered upon the exercise of the Representative’s Warrants in accordance
with this Agreement, will be validly issued, fully paid and nonassessable,
without any personal liability attaching to the ownership thereof, and will
not
be issued in violation of any preemptive or similar rights of stockholders,
and
the holders of the Representative’s Warrants will receive good title to the
Warrant Shares free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders’ agreements and voting trusts. The
Representative’s Warrant and the Warrant Shares conform to all statements
relating thereto in the Registration Statement and Prospectus.
4
(g)
The
Company has been legally incorporated and is now, and always during the period
of the offering will be, a validly existing corporation under the laws of
the
State of Delaware, lawfully qualified to conduct the business for which is
was
organized and which it proposes to conduct. The Company will always during
the
period of the offering be qualified to conduct business as a foreign corporation
in each jurisdiction where the nature of its business requires such
qualification.
(h)
The
Company’s certificate of incorporation provides for the authorization of 100
million (100,000,000) shares of Common Stock and ten million (10,000,000)
shares
of preferred stock, par value $0.001 per share. There are no outstanding
options, warrants or other rights to purchase or otherwise receive securities
of
the Company except as described in the Registration Statement.
(i)
The
Company has no subsidiaries nor contemplates acquiring subsidiaries or engaging
in mergers with or the acquisition of any companies.
(j)
The
financial statements, together with related schedules and notes, to be included
in the Registration Statement will present fairly the financial condition
of the
Company and will be reported upon by independent public accountants according
to
generally accepted accounting principles and as required by the rules and
regulations of the Commission.
5
(k)
The
Securities, Representative’s Warrants or Warrant Shares nor any of the other
Company’s securities are not subject to preemptive rights.
(l)
The
Company has the legal right and authority to enter into this Underwriting
Agreement, to effect the proposed sale of the Securities, and to effect all
other transactions contemplated by this Agreement.
(m)
The
Company is eligible to use Form SB-2 for the offering of the
Securities.
(n)
The
Company possesses adequate certificates and permits issued by the appropriate
federal, state and local regulatory authorities necessary to conduct its
business and to retain possession of its properties. The Company has not
received any notice of any proceeding relating to the revocation or modification
of any of these certificates or permits.
(o)
The
Company has filed all tax returns required to be filed and is not in default
in
the payment of any taxes that have become due pursuant to any law or any
assessment.
(p)
All
of
the contracts, leases, licenses, permits and agreements under which the Company
operates as will be described in the Registration Statement are in full force
and effect. The Company is not in default under any of the material terms
or
provisions of any such contracts, leases, licenses, permits or
agreements.
(q)
All
original documents and other information relating to the Company’s business are
and will continue to be made available upon request to the Underwriters and
their counsel at the offices of the Company, and copies of any such documents
will be promptly furnished upon request to the Representative or its
counsel.
6
(r)
The
Company shall appoint Interwest Transfer Company, Inc., another firm reasonably
acceptable to the Representative, as the Company’s transfer agent. The Company
will continue to retain a transfer agent reasonably satisfactory to the
Representative for so long as the Company is subject to the reporting
requirements under Section 12(g) or Section 15(d) of the Securities Exchange
Act
of 1934, as amended (the "Exchange
Act").
The
Company will make arrangements to have available at the office of the transfer
agent sufficient quantities of the Company’s appropriate certificates as may be
needed for the quick and efficient transfer of the Securities.
(s)
The
Company will use the proceeds from the sale of the Securities and from the
exercise of the Representative’s Warrants as will be set forth in the
Registration Statement and Prospectus.
(t)
There
are
no contracts or other documents required to be described in the Registration
Statement or to be filed as exhibits to the Registration Statement that will
not
be described or filed as required.
All
of
the above representations and warranties shall survive the performance or
termination of this Agreement.
7
3.
Representations,
Warranties and Covenants of the Representative.
The
Representative represents, warrants and covenants as follows:
(a)
It
is
registered as a broker-dealer with the Commission, and is registered to the
extent registration is required with the appropriate governmental agency
in each
State in which it offers or sells the Securities, and is a member of the
National Association of Securities Dealers, Inc. (“NASD”)
and
will use its best efforts to maintain such registrations, qualifications
and
memberships throughout the term of the offering.
(b)
To
the
knowledge of the Representative, no action or proceeding is pending against
the
Representative or any of its officers or directors concerning the
Representative’s activities as a broker or dealer that would affect the
Company’s offering of the Securities.
(c)
The
Representative will offer the Securities only in those states and in the
quantities that are identified in the Blue Sky Memoranda from the Company’s
counsel to the Representative that the offering of the Securities has been
registered or qualified (or exempt from registration/qualification) for sale
under the applicable State statutes and regulations. The Representative,
however, may offer the Securities in other States if (i) the transaction
is
exempt from the registration requirements in that State, (ii) the Company’s
counsel has received notice ten days prior to the proposed sale, and (iii)
the
Company’s counsel does not object within such ten-day period.
(d)
The
Representative, in connection with the offer and sale of the Securities and
in
the performance of its duties and obligations under this Agreement, agrees
to
use its best efforts to comply with all applicable federal laws; the laws
of the
states or other jurisdictions in which the Securities are offered and sold;
and
the Rules and current written interpretations and policies of the
NASD.
8
(e)
The
Representative is a limited liability company duly organized, validly existing
and in good standing under the laws of the state of its formation with all
requisite power and authority to enter into this Agreement and to carry out
its
obligations hereunder.
(f)
This
Agreement has been duly authorized, executed and delivered by the Representative
and is a valid agreement on the part of the Representative.
(g)
Neither
the execution of this Agreement nor the consummation of the transactions
contemplated hereby will result in any breach of any of the terms or conditions
of, or constitute a default under, the articles of incorporation or bylaws
of
the Representative or any indenture, agreement or other instrument to which
the
Representative is a party or violate any order directed to the Representative
of
any court or any federal or State regulatory body or administrative agency
having jurisdiction over the Representative or its affiliates.
(h)
No
person
acting by, through or under the Representative will be entitled to receive
from
the Representative or from the Company finders’ fees or similar payments, except
as set forth in this agreement.
All
of
the above representations and warranties shall survive the performance or
termination of this Agreement.
9
(4) Employment
of the Representative.
In
reliance upon the representations and warranties and subject to the terms
and
conditions of this Agreement:
(a) The
Company agrees to issue and sell to the Underwriters, and the Underwriters,
severally but not jointly, agree to purchase from the Company on a
firm-commitment basis, the number of Shares set forth opposite their respective
names on Schedule
I
attached
hereto (the “Closing”)
for a
purchase price 10% less than the initial public offering price of the Shares.
It
is understood between the parties that there is no firm commitment by the
Representative to purchase any or all of the Additional Shares.
(b)
The
obligation of the Underwriters to purchase the Securities from the Company
is
subject to receipt by it of written advice from the SEC that the Registration
Statement is effective, is subject to the Securities being registered or
qualified (or exempt from registration/qualification) for offering under
applicable laws in the States as may be reasonably designated, is subject
to the
absence of any prohibitory action by any governmental body, agency or official,
and is subject to the terms and conditions contained in this Agreement and
in
the Registration Statement.
(c)
At
the Closing, the Company shall also pay or provide the Representative with
the
following:
10
(d)
The
Company shall be responsible for all of its selling expenses incident to
the
offering (other than commissions and other compensation set forth in paragraph
(c) of this Section 4) which are customarily incurred, paid, or borne by
or on
behalf of issuers in connection with the sale of securities, even though
such
expenses are paid through the Representative. Such selling expenses include,
but
are not limited to, the following: (1) the cost of preparing, printing, and
filing registration applications, registration statements, prospectuses,
offering circulars, and other documents used in registering securities,
including any registration fees and other expenses associated therewith;
(2) the
amount of any attorneys’ fees and expenses (except those charged by an
underwriter's counsel) incurred or paid in connection with the offering;
(3) the
amount of any accountant's or auditor's fees and expenses incurred or paid
in
connection with the offering; (4) the amount of the fees and charges of any
transfer agents, registrars, indenture trustees, escrow agents, depositories,
engineers, appraisers, or other professional or technical experts; (5) the
cost
of authorizing, preparing, and printing certificates for securities and other
documents relating thereto, including taxes and stamps; (6) the amount of
all
printing, advertising, traveling expenses, and expenses in connection with
meetings and presentations for informational or promotional purposes
(e.g.,
“road
show”) incurred or paid by the Company or, at the request of or with the prior
approval of the Company, which approval shall not be unreasonably withheld,
by
the Representative, in registering or selling securities, (except
“road show” or meeting expenses traditionally borne by an
underwriter);
and (7)
any other costs (including staffing or other additional administrative costs)
directly or indirectly borne by the Company in respect of the sale of the
securities being offered, that are not selling costs for the offering.
11
(e) The
Over-Allotment Option may be exercised by the Representative on the basis
of the
representations, warranties, covenants and agreements of the Company herein
contained, subject to the terms and conditions herein set forth, at any time
and
from time to time on or before the 45th
day
following the date on which the Registration Statement becomes effective
under
the securities Act, by written notice of the Representative to the Company.
Such
notice shall set forth the aggregate number of Additional Shares as to which
the
Over-Allotment Option is being exercised and the time and date as determined
by
the Representative, when such Additional Shares (such time and date are
hereinafter referred to as the “Additional Closing”).
12
(f) At
the
Closing or the Additional Closing, as the case may be, the Representative
shall
have received the favorable opinion of Xxxxxx & Xxxxx, LLP, counsel for the
Company, having offices at Mission Bay Office Plaza, 00000 Xxxxx Xxxx 0,
Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000, addressed to the Underwriters, with reproduced
copies or signed counterparts thereof, for each of the Underwriters, to the
satisfaction of the Representative.
5.
Further
Agreements of the Company.
The
Company further agrees with the Representative as follows:
(a)
To
use
its best efforts to cause the Registration Statement to become effective
under
the Securities Act as promptly as possible and notify the Representative
immediately, and confirm such notice in writing, (i) when the Registration
Statement and any post-effective amendment thereto become effective under
the
Securities Act, (ii) of the receipt of any comments from the SEC or the “blue
sky” or securities authority of any jurisdiction regarding the Registration
Statement, any post-effective amendment thereto, the Prospectus, or any
amendment or supplement thereto, (iii) of the filing with the SEC of any
supplement to the Prospectus, and (iv) of the receipt of any notification
with
respect to a Stop Order. The Company will use its best efforts to prevent
the
issuance of any Stop Order and, if and if any Stop Order is issued, to obtain
the lifting thereof as promptly as possible. If the Registration Statement
has
become or becomes effective under the Securities Act with a form of prospectus
omitting information under Rule 430A of Regulation C promulgated under the
Securities Act, or filing of the prospectus with the SEC is otherwise required
under Rule 424(b) of Regulation C, the Company will file with the SEC the
Prospectus, properly completed, pursuant to such rule within the time period
prescribed and will provide evidence satisfactory to the Representative of
such
timely filing.
13
(b) During
the time when a Prospectus relating to the Securities is required to be
delivered hereunder or under the acts or regulations promulgated by the SEC,
comply with all the requirements imposed upon it by the Securities Act, as
now
existing and hereafter amended, and by the rules and regulations promulgated
thereunder, as from time to time in force, so far as necessary to permit
the
continuance of the sales of the Securities in accordance with the provisions
hereof. If, at any time when a Prospectus relating to the Securities is required
to be delivered hereunder or under the rules or the regulations promulgated
by
the SEC, any event shall have occurred as a result of which, in the reasonable
opinion of counsel for the Company or counsel for the Representative, the
Registration Statement or the prospectus as then amended or supplemented
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or if, the in the reasonable opinion of either of such counsel,
it is necessary at any time to amend or supplement the Registration Statement
or
the prospectus to comply with the Securities Act and the rules and regulations
promulgated thereunder, the Company will immediately notify the Representative
and promptly prepare and file with the SEC an appropriate amendment or
supplement (in form and substance satisfactory to the Representative) which
will
correct such statement or omission of which will effect such compliance and
will
use its best efforts to have any such amendment declared effective under
the
Securities Act as soon as possible.
14
(c) The
Company will use its best efforts to register or qualify the sale of the
Securities and Warrant Shares in such States as shall be reasonably requested
by
the Representative.
(d)
The
Company will deliver to the Representative as many copies of the preliminary
Prospectus as the Representative may reasonably request during the period
following the filing of the Registration Statement and each amendment thereto.
The Company will deliver to the Representative as many copies of the final
Prospectus and each post-effective amendment of the Registration Statement,
as
the Representative may reasonably request during the period of the offering
and
for ninety
(90) days
after the closing date,
(e)
The
Company will file with the Commission and any appropriate State securities
commissioners any sales and other reports required by the rules and regulations
of such agencies and will promptly supply copies to the
Representative.
(f)
The
Company will notify the Representative a reasonable amount of time in advance
of
any additional issuance of shares following a successful closing, for a period
of two years following the closing date of the offering, except upon the
issuance of shares underlying warrants outstanding on the closing date and
shares issued pursuant to any duly adopted directors or employees stock or
stock
option or equivalent plan, the issuance of which Company will notify the
Representative within five business days following such issuance.
15
(g)
If
at any
time during the period that the Representative's Warrant may be exercised,
the
Company intends to file a registration statement for an underwritten offering
(a
“Piggyback Registration”) of the sale of shares of its Common Stock on a form
suitable for registering the shares underlying the Representative’s Warrant (the
“Registrable Shares”), the Company will notify the Representative of its
intention at least 30, but no more than 60 days prior to the filing of such
registration statement. Within 20 days of such notice, the Representative,
on
its own behalf and on behalf of all holders of Representative’s Warrant
(collectively, “Holders”) may elect (by written notice to the Company) to
include among the registered shares in the Piggyback Registration any specific
number of Registrable Shares. If the Representative is not the managing
underwriter of the Piggyback Registration, all Holders shall be subject to
cut-back and lock-in provisions as required by the managing underwriter of
the
offering in order to effect an orderly distribution of the shares and are
customary and reasonable in the circumstances. The Representative on behalf
of
all participating Holders shall provide the usual indemnities to both the
Company and the underwriter of the Piggyback Registration and complete and
execute all documents required by the managing underwriter.
6.
Indemnification.
(a)
The
Company agrees to indemnify, defend and hold harmless the Representative
from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable legal or other expenses) incurred by the Representative
in
connection with defending or investigating any such or liabilities that the
Representative may incur under the federal or State securities laws and
regulations, State statutes or at common law or otherwise, but only to the
extent that such losses, claims, damages, liabilities and expenses shall
arise
out of or be based upon a violation or alleged violation of the federal or
State
securities laws or regulations, a State statute or the common law resulting
from
any untrue statement or alleged untrue statement of a material fact contained
in
the Registration Statement or in any application or other papers filed with
the
various State securities authorities (“Blue
Sky Applications”)
or
shall arise out of or be based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading.
16
(b)
The
foregoing indemnity of the Company in favor of the Representative shall not
be
deemed to protect the Representative against any liability to which the
Representative would otherwise be subject by reason of willful misfeasance,
bad
faith or gross negligence in the performance of the Representative’s duties, or
by reason of the Representative’s reckless disregard of the Representative’s
obligations and duties under the Securities Act or this Agreement.
(c)
The
Representative agrees to give the Company an opportunity to participate in
the
defense or preparation of the defense of any action brought against the
Representative to enforce any such claim or liability and the Company shall
have
the right so to participate. The agreement of the Company under the foregoing
indemnity is expressly conditioned upon notice of any such action having
been
sent by the Representative to the Company in writing, addressed as provided
in
this Agreement, promptly after the receipt of a written notice of such action
against the Representative. Such notice shall be accompanied by copies of
papers
served or filed in connection with such action or by a statement of the nature
of the action to the extent known to the Representative.
17
7.
Termination.
(a)
This
Agreement shall become effective 9:30 a.m., New York City local time, on
the
first full business day following the date on which the Registration Statement
becomes effective under the Securities Act. Subject to paragraph (c) of this
Section, this Agreement may be terminated by the Representative by written
notice sent to the Company at the address shown in this Agreement
at any
time prior to the Closing.
(b)
An
attempt to assign any rights and obligations under this Agreement shall
constitute automatic termination of this Agreement.
(c)
Underwriter
may terminate this Agreement, by notice to the Company, at any time prior
to the
Closing (i) if the Company shall have sustained a material or substantial
loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other
calamity or malicious act, whether or not such loss shall be been insured,
or
from any labor dispute or court or government action, order or decree, which
will in the Representative’s, makes it inadvisable to proceed with the Offering,
sale or delivery of the Shares, as the case may be, or (ii) if there has
occurred any outbreak of hostilities or other calamity or crisis the effect
of
which on the financial markets of the United States is such as to make it,
in
the Representative’s judgment impracticable to market the Securities or enforce
contracts for the sale of the Securities or (iii) if trading in the securities
of the Company has been suspended by the SEC, or (iv) if trading generally
on
any national or foreign stock exchange or over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or market or by order of the SEC or any other governmental authority, or
(v) if
a banking moratorium has been declared by either federal or any state
authorities.
18
(d)
If
this
Agreement is terminated pursuant to this paragraph 7, such termination shall
be
without liability of either party to the other party.
8.
Notices.
All
notices shall be deemed to have been duly given if mailed, or if communicated
by
telegraph, facsimile, electronic mail or telephone and subsequently immediately
confirmed in writing:
|
To
the Company:
|
ValueRich,
Inc.
0000
X. Xxxxx Xxxxxxx, Xxx. X
Xxxx
Xxxx Xxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx Xxxxxxxx, CEO
|
|
|
With
a copy to:
|
Xxxxxx
& Xxxxx, XX
Mission
Bay Office Plaza
00000
Xxxxx Xxxx 0, Xxx 000
Xxxx
Xxxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxx Xxxxxx, Esq.
|
|
To
the Representative:
|
Lane
Capital Markets, LLC.
000
Xxxxxx Xxxxx Xxxx
Xxxxxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxx Xxxx
|
|
|
With
a copy to:
|
The
Xxxxxxx Law Firm
The
Galleria
0
Xxxxxx Xxxxxx
Xxxxxxxx
0, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxxxx X. Xxxxxxx, Esq.
|
19
9.
Binding
Effect.
This
Agreement shall inure to the benefit of and be binding upon the Company and
the
Representative and their successors. Nothing expressed in this Agreement
is
intended to give any person other than the persons mentioned in the preceding
sentence any legal or equitable right, remedy or claim under this
Agreement.
10.
Arbitration.
The
Company and the Representative agree that in the event a dispute arises between
the Representative and the Company or any of its officers, directors, employees,
agents, attorneys or accountants, arising out of, in connection with or as
a
result of the execution of this Agreement or as a result of any subscription
tendered by any purchaser of the Securities, such dispute shall be resolved
through arbitration rather than litigation. The parties agree to submit such
disputes for resolution to the NASD within five (5) days after receiving
a
written request from any of the aforesaid parties to do so. The failure by
the
Company or Representative to submit any dispute to arbitration as requested
may
result in the commencement of an arbitration proceeding against such party.
The
parties further agree that any hearing scheduled after an arbitration proceeding
is initiated by any of the aforesaid parties shall take place in New York,
NY.
The parties acknowledge that the result of the arbitration proceeding shall
be
final and binding on all of the parties to the proceeding, and by agreeing
to
arbitration the parties are waiving their respective rights to seek remedies
in
Court.
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11. Syndicate.
(a)
The
Representatives agrees that it shall use its best efforts to be qualified
to
sell securities to purchasers in all 00 Xxxxxx Xxxxxx, xxx Xxxxxxxx xx Xxxxxxxx
and the Commonwealth of Puerto Rico either through its own brokers or through
qualified and/or licensed by NASD.
(b)
The
Representative shall enter into selling agreements with licensed brokers
and/or
dealers it selects who are acceptable to the Company using a form of selling
agreement reasonably acceptable to the Company ("Selling Agreements"). The
Representative may also enter into Selling Agreements with Underwriters selected
by the Company who are reasonably acceptable to the Representative, which
such
Underwriters upon the execution of Selling Agreements shall be deemed part
of
the syndicate of Underwriters. Neither the Company nor the Representative
shall
unreasonably withhold acceptance of any Underwriter proposed by the other
party.
12.
Miscellaneous
Provisions.
(a)
This
Agreement shall be construed in accordance with the laws of the State of
New
York.
(b)
The
representations and warranties made in this Agreement shall survive the
termination of this Agreement and shall continue in full force and
effect.
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(c)
This
Agreement is made solely for the benefit of the Company and its officers,
directors and controlling persons within the meaning of Section 15 of the
Securities Act and of the Representative and its officers, directors and
controlling persons within the meaning of Section 15 of the Securities Act,
and
their respective successors, heirs and personal representatives, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The
term “successor” as used in this Agreement shall not include any purchaser, as
such, of the Securities.
(d)
The
information contained in the Company’s database of potential investors is
strictly confidential and Underwriter shall use that information as provided
by
the Company solely for the purpose of offering the Securities, and satisfying
its fiduciary obligations to all purchasers of the Securities. The
Representative may specifically open accounts for, and discuss other investments
with, any potential investor in the Company's database who already has a
relationship with the Representative, or who specifically requests that service
and/or related information from the Representative (including requests through
Representative’s website contact form), but the Representative shall not make
any general solicitation to others in the Company's investor database without
the express written consent of the Company. The Representative shall use
its
best efforts to obtain compliance with this paragraph by the
Underwriters.
13.
Effectiveness.
The
effectiveness of this Agreement shall be subject to the approval of the
Company’s board of directors.
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If
this
letter agreement correctly sets forth our understanding, please indicate
your
acceptance in the space provided below for that purpose.
|
Sincerely,
LANE
CAPITAL MARKETS, LLC
|
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| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| Confirmed and accepted as of ______________, 2006 | ||
| VALUERICH, INC. | |||
| |
|
|
|
| By: | |||
|
Name: |
|||
| Title: | |||
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