EXHIBIT 1.1
PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 5th day of January 2006, by
and between Ingen Technologies, Inc., the ("Company"), and, JPC Capital
Partners, Inc., a Georgia corporation (the "Agent").
WITNESSETH:
WHEREAS, the Company desires to consider strategic alternatives available
that include, but are not limited to, issuing and selling equity of the Company
in the amount of up to $5,000,000.00 (Five Million Dollars); and
WHEREAS, the Agent has offered to assist the Company in the procurement of
potential purchasers of the Company's equity. Further 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
nonexclusive 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 8 hereof (the "Term").
2. Representations and Warranties of the Company. In order to induce the
Agent to enter into this Agreement, the Company hereby represents and warrants
to and agrees with the Agent as follows:
(a) Accuracy of Information. All written information provided by the
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, as of the date hereof. All written
information provided by the Company to the Agent regarding the Company after the
date hereof shall be true and shall not omit any material fact necessary to make
such information, in light of the circumstances under which it was delivered,
not misleading, as of the date of delivery. The Company undertakes no obligation
to update information after it is provided, and makes no representations or
warranty as to the accuracy of financial projections or as to information
provided orally.
(b) No Defaults. The execution and delivery of this Agreement, and the
consummation of the transactions herein contemplated, and compliance with the
terms of this Agreement will not conflict with or result in a material 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 best of 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, which breach would have a material adverse affect
on the business or financial condition of the Company.
(c) Incorporation and Authorization. The Company is duly formed and 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, except as enforcement
may be limited by general principles of equity and by bankruptcy and other laws
affecting creditors' rights generally
3. Representations and Warranties of the Agent. In order to induce 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 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 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, except as enforcement
may be limited by general principles of equity and by bankruptcy and other laws
affecting creditors' rights generally
(c) Registered Broker Dealer. The Agent is duly registered and qualified as
a broker dealer in such jurisdictions and with such regulatory bodies as is
necessary in order to legally carry out the transactions contemplated by this
Agreement.
4. Placement Fee. The Company shall pay, upon receipt of the cash proceeds
from a financing that is completed as a direct result of the Agent Services
under this Agreement, the Agent a fee of ten percent (10%) of the gross
subscription proceeds of an equity offering by the Company from purchasers
procured by the Agent; provided such subscriptions are accepted by the Company.
The Company shall also issue, within ten days of the closing of each financing
completed as a direct result of the Agent Services under this Agreement, to the
Agent ten percent (10%), five-year non-callable warrants ("Warrants") at a
strike price and with registration rights equal to the strike price and
registration rights of the warrants issued to purchasers procured by the Agent.
5. Registration Rights. If at any time prior to the expiration of the
three-year period beginning on the date the Warrants are issued, and when there
is no effective registration statement covering the shares of common stock
underlying the Warrants (the "Regsitrable Securities"), the Company proposes to
file with the SEC a Registration Statement relating to an offering for its own
account or the account of others under the Securities Act of 1933 of any of its
securities (other than on Form S-4 or Form S-8 or their then equivalents
relating to securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with stock
option or other employee benefit plans) the Company shall promptly send to Agent
written notice of the Company's intention to file a Registration Statement and,
if within ten (10) days after receipt of such notice, Agent shall so request in
writing, the Company shall include in such Registration Statement all or any
part of the Registered Securities, Agent requests to be registered at the
Company's cost and expense.
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6. Non-Circumvention. The Company hereby agrees as follows:
(a) 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 and payment to the Agent compensation no less than the compensation to be
paid to the Agent hereunder.
(b) In the event that the Company breaches Section 6(a) of this Agreement,
the Agent shall be entitled to receive compensation in the same proportion to
the transaction done without the Agent's participation as the compensation to
the Agent under this Agreement bears to the transaction.
7. Indemnification.
(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 7(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, nor shall it apply to the Agent's Indemnitees if the claim
damage or liability resulted from a fraudulent or negligent act of any of the
Agent's Indemnitees. 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 7(a), to notify the Company in
writing of the commencement of such action; provided, however, that the failure
of the Agent's Indemnitees to notify the Company of any such action shall not
relieve the Company from any liability which it may have to the Agent's
Indemnitees on account of the indemnity contained in this Section 7(a), and
further shall not relieve the Company from any other liability which it may have
to the Agent's Indemnitees, 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 7(a) above, to indemnify and hold harmless the Company and the
Company's officers, directors, 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.
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8. Termination.
(a) This Agreement will automatically renew 90 days from the execution of
the signature page but can be terminated by mutual written consent of the Agent
and Company.
(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 Sections 4 and 6 and that have been
earned by the Agent up to the date of such termination; and the Company and the
Agent shall be obligated to pay, respectively, all losses, claims, damages or
liabilities, joint or several, under Section 7 hereof.
9. Miscellaneous.
(a) Notice. Whenever notice is required by the provisions of this Agreement
to be given to the Company, such notice shall be in writing, addressed to the
Company, at:
If to Company: Ingen Technologies, Inc.
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Sand
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: JPC Capital Partners, Inc.
000 Xxxxx Xxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
(b) Governing Law. The validity, interpretation, and construction 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
counterparts, each of which may be deemed an original and all of which together
will constitute one and the same instrument.
(d) Confidential Information. All confidential financial or business
information (except publicly available or freely usable material otherwise
obtained from another source) respecting either party will be used solely by the
other party in connection with the within transactions, be revealed only to
employees or contractors of such other party who are necessary to the conduct of
such transactions, and be otherwise held in strict confidence.
[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
Ingen Technologies, Inc.
By: - s -
----------------------
Name: Xxxxx Sand
Title: CEO
AGENT
JPC Capital Partners, Inc.
By: - s -
----------------------
Name: Xxxx Xxxxxxx
Title: President, CEO
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