UNICORP INCORPORATED PLACEMENT AGENT AGREEMENT
Exhibit
99.3
PLACEMENT
AGENT AGREEMENT
Dated
as
of: August
8,
2005
Monitor
Capital Inc.
0000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Ladies
and Gentlemen:
The
undersigned, Unicorp Incorporated, a Nevada corporation (the “Company”),
hereby agrees with
Monitor
Capital Inc. (the “Placement
Agent”),
and
Cornell Capital Partners, LP (the “Investor”) as follows:
1. Offering.
The
Company hereby engages the Placement Agent to act as its exclusive placement
agent in connection with the Standby Equity Distribution Agreement dated the
date hereof between the Company and the Investor (the “Standby
Equity Distribution Agreement”),
pursuant to which the Company shall issue and sell to the Investor, from time
to
time, and the Investor shall purchase from the Company (the “Offering”)
up to
Ten Million Dollars ($10,000,000) (the “Commitment
Amount”)
of the
Company’s common stock, par value $0.001 per share (the “Common
Stock”),
at
price per share equal to the Purchase Price, as that term is defined in the
Standby Equity Distribution Agreement. The
Placement Agent services
shall
consist of reviewing
the
terms
of
the
Standby Equity Distribution Agreement and advising
the
Company with
respect to those
terms.
All
capitalized terms used herein and not otherwise defined herein shall have the
same meaning ascribed to them as in the Standby Equity Distribution Agreement.
The Investor will be granted certain registration rights with respect to the
Common Stock as more fully set forth in the Registration Rights Agreement
between the Company and the Investor dated the date hereof (the “Registration
Rights Agreement”).
The
documents to be executed and delivered in connection with the Offering,
including, but not limited, to the
Company’s latest Quarterly Report on Form 10-QSB as filed with the United States
Securities and Exchange Commission, this
Agreement, the Standby Equity Distribution Agreement, and the Registration
Rights Agreement are referred to sometimes hereinafter collectively as the
“Offering
Materials.”
The
Company’s Common Stock
purchased by the Investor under
the
Standby Equity Distribution Agreement is sometimes referred to hereinafter
as
the “Securities.”
The
Placement Agent shall not be obligated to sell any Securities.
2. Compensation.
A. Upon
the
execution of this Agreement, the Company shall issue to the Placement Agent
or
its designee shares of the Company’s Common Stock in an amount equal to Ten
Thousand Dollars ($10,000) divided by the closing bid price of the Common Stock,
as quoted by Bloomberg, LP, on the date hereof (the “Placement
Agent’s Shares”).
The
Placement Agent shall be entitled to “piggy-back” registration rights with
respect to the Placement Agent’s Shares, which shall be triggered upon
registration of any shares of Common Stock by the Company pursuant to the
Registration Rights Agreement dated the date hereof.
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3. Representations,
Warranties and Covenants of the Placement Agent.
A. The
Placement Agent represents, warrants and covenants as follows:
(i) The
Placement Agent has the necessary power to enter into this Agreement and to
consummate the transactions contemplated hereby.
(ii) The
execution and delivery by the Placement Agent of this Agreement and the
consummation of the transactions contemplated herein will not result in any
violation of, or be in conflict with, or constitute a default under, any
agreement or instrument to which the Placement Agent is a party or by which
the
Placement Agent or its properties are bound, or any judgment, decree, order
or,
to the Placement Agent’s knowledge, any statute, rule or regulation applicable
to the Placement Agent. This Agreement when executed and delivered by the
Placement Agent, will constitute the legal, valid and binding obligations of
the
Placement Agent, enforceable in accordance with their respective terms, except
to the extent that (a) the enforceability hereof or thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium or similar laws from time
to
time in effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject to general principles of equity,
or
(c) the indemnification provisions hereof or thereof may be held to
be in
violation of public policy.
(iii) Upon
receipt and execution of this Agreement, the Placement Agent will promptly
forward copies of this Agreement to the Company or its counsel and the Investor
or its counsel.
(iv) The
Placement Agent will not intentionally take any action that it reasonably
believes would cause the Offering to violate the provisions of the Securities
Act of 1933, as amended (the “1933
Act”),
the
Securities Exchange Act of 1934 (the “1934
Act”),
the
respective rules and regulations promulgated thereunder
(the
“Rules
and Regulations”)
or
applicable “Blue Sky” laws of any state or jurisdiction.
(v) The
Placement Agent is a member of the National Association of Securities Dealers,
Inc., and is a broker-dealer registered as such under the 1934 Act and under
the
securities laws of the states in which the Securities will be offered or sold
by
the Placement Agent unless an exemption for such state registration is available
to the Placement Agent. The Placement Agent is in material
compliance
with the
rules
and regulations applicable to the Placement Agent generally and applicable
to
the Placement Agent’s participation in the Offering.
4. Representations
and Warranties of the Company.
A. The
Company represents and warrants as follows:
(i) The
execution, delivery and performance of each of this Agreement, the Standby
Equity Distribution Agreement, and the Registration Rights Agreement has been
or
will be duly and validly authorized by the Company and is, or with respect
to
this Agreement, the Standby Equity Distribution Agreement, and the Registration
Rights Agreement will be, a valid and binding agreement of the Company,
enforceable in accordance with its respective terms, except to the extent that
(a) the enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time in
effect and affecting the rights of creditors generally, (b) the enforceability
hereof or thereof is subject to general principles of equity or (c) the
indemnification provisions hereof or thereof may be held to be in violation
of
public policy. The Securities to be issued pursuant to the transactions
contemplated by this Agreement and the Standby Equity Distribution Agreement
have been duly authorized and, when issued and paid for in accordance with
this
Agreement and the Standby Equity Distribution Agreement will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, except to the extent that (1) the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws from time to time in effect and affecting the rights of creditors
generally, and (2) the enforceability thereof is subject to general principles
of equity. All corporate action required to be taken for the authorization,
issuance and sale of the Securities has been duly and validly taken by the
Company.
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(ii) The
Company has a duly authorized, issued and outstanding capitalization as set
forth herein and in the Standby Equity Distribution Agreement. The Company
is
not a party to or bound by any instrument, agreement or other arrangement
providing for it to issue any capital stock, rights, warrants, options or other
securities, except for this Agreement, the agreements described herein and
as
described in the Standby Equity Distribution Agreement and the agreements
described therein.
All
issued and outstanding securities of the Company, have been duly authorized
and
validly issued and are fully paid and non-assessable; the holders thereof have
no rights of rescission or preemptive rights with respect thereto and are not
subject to personal liability solely by reason of being security holders; and
none of such securities were issued in violation of the preemptive rights of
any
holders of any security of the Company.
(iii) The
Common Stock to be issued in accordance with this Agreement and the Standby
Equity Distribution Agreement have been duly authorized and, when issued and
paid for in accordance with this Agreement, the Standby Equity Distribution
Agreement and the certificates/instruments representing such Common Stock will
be validly issued, fully-paid and non-assessable; the holders thereof will
not
be subject to personal liability solely by reason of being such holders; such
Securities are not and will not be subject to the preemptive rights of any
holder of any security of the Company.
(iv) The
Company has good and marketable title to, or valid and enforceable leasehold
estates in, all items of real and personal property necessary to conduct its
business (including, without limitation, any real or personal property stated
in
the Offering Materials to be owned or leased by the Company), free and clear
of
all liens, encumbrances, claims, security interests and defects of any material
nature whatsoever, other than those set forth in the Offering Materials and
liens for taxes not yet due and payable.
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(v) There
is
no litigation or governmental proceeding pending or, to the best of the
Company’s knowledge, threatened against, or involving the properties or business
of the Company, except as set forth in the Offering Materials.
(vi) The
Company is duly organized and validly exists as a corporation in good standing
under the laws of the State of Nevada. Except as set forth in the Offering
Materials, the Company does not own or control, directly or indirectly, an
interest in any other corporation, partnership, trust, joint venture or other
business entity. The Company is duly qualified or licensed and in good standing
as a foreign corporation in each jurisdiction in which the character of its
operations requires such qualification or licensing and where failure to so
qualify would have a material adverse effect on the Company. The Company has
all
requisite corporate power and authority, and all material and necessary
authorizations, approvals, orders, licenses, certificates and permits of and
from all governmental regulatory officials and bodies (domestic and foreign)
to
conduct its businesses (and proposed business) as described in the Offering
Materials. Any disclosures in the Offering Materials concerning the effects
of
foreign, federal, state and local regulation on the Company’s businesses as
currently conducted and as contemplated are correct in all material respects
and
do not omit to state a material fact. The Company has all corporate power and
authority to enter into this Agreement, the Standby Equity Distribution
Agreement, the Registration Rights Agreement, and to carry out the provisions
and conditions hereof and thereof, and all consents, authorizations, approvals
and orders required in connection herewith and therewith have been obtained.
No
consent, authorization or order of, and no filing with, any court, government
agency or other body is required by the Company for the issuance of the
Securities or execution and delivery of the Offering Materials except for
applicable federal and state securities laws. The Company, since its inception,
has not incurred any liability arising under or as a result of the application
of any of the provisions of the 1933 Act, the 1934 Act or the Rules and
Regulations.
(vii) There
has
been no material adverse change in the condition or prospects of the Company,
financial or otherwise, from the latest dates as of which such condition or
prospects, respectively, are set forth in the Offering Materials, and the
outstanding debt, the property and the business of the Company conform in all
material respects to the descriptions thereof contained in the Offering
Materials.
(viii) Except
as
set forth in the Offering Materials,
the
Company is not in breach of, or in default under, any term or provision of
any
material indenture, mortgage, deed of trust, lease, note, loan or any other
material agreement or instrument evidencing an obligation for borrowed money,
or
any other material agreement or instrument to which it is a party or by which
it
or any of its properties may be bound or affected. The Company is not in
violation of any provision of its charter or by-laws or in violation of any
franchise, license, permit, judgment, decree or order, or in violation of any
material statute, rule or regulation. Neither the execution and delivery of
the
Offering Materials nor the issuance and sale or delivery of the Securities,
nor
the consummation of any of the transactions contemplated in the Offering
Materials nor the compliance by the Company with the terms and provisions hereof
or thereof, has conflicted with or will conflict with, or has resulted in or
will result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or encumbrance upon
any
property or assets of the Company or pursuant to the terms of any indenture,
mortgage, deed of trust, note, loan or any other agreement or instrument
evidencing an obligation for borrowed money, or any other agreement or
instrument to which the Company may be bound or to which any of the property
or
assets of the Company is subject except (a) where such default, lien, charge
or
encumbrance would not have a material adverse effect on the Company and (b)
as
described in the Offering Materials; nor will such action result in any
violation of the provisions of the charter or the by-laws of the Company or,
assuming the due performance by the Placement Agent of its obligations
hereunder, any material statute or any material order, rule or regulation
applicable to the Company of any court or of any foreign, federal, state or
other regulatory authority or other government body having jurisdiction over
the
Company.
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(ix) Subsequent
to the dates as of which information is given in the Offering Materials, and
except as may otherwise be indicated or contemplated herein or therein the
Company has not (a) issued any securities or incurred any liability or
obligation, direct or contingent, for borrowed money, or (b) entered into any
transaction other than in the ordinary course of business, or (c) declared
or
paid any dividend or made any other distribution on or in respect of its capital
stock. Except as described in the Offering Materials, the Company has no
outstanding obligations to any officer or director of the Company other than
normal payable in connection with services provided recently.
(x) There
are
no claims for services in the nature of a finder’s or origination fee with
respect to the sale of the Common Stock or any other arrangements, agreements
or
understandings that may affect the Placement Agent's compensation, as determined
by the National Association of Securities Dealers, Inc.
(xi) The
Company owns or possesses, free and clear of all liens or encumbrances and
rights thereto or therein by third parties, the requisite licenses or other
rights to use all trademarks, service marks, copyrights, service names, trade
names, patents, patent applications and licenses necessary to conduct its
business (including, without limitation, any such licenses or rights described
in the Offering Materials as being owned or possessed by the Company) and,
except as set forth in the Offering Materials, there is no claim or action
by
any person pertaining to, or proceeding, pending or threatened, which challenges
the exclusive rights of the Company with respect to any trademarks, service
marks, copyrights, service names, trade names, patents, patent applications
and
licenses used in the conduct of the Company’s businesses (including, without
limitation, any such licenses or rights described in the Offering Materials
as
being owned or possessed by the Company) except any claim or action that would
not have a material adverse effect on the Company; the Company’s current
products, services or processes do not infringe or will not infringe on the
patents currently held by any third party.
(xii) Subject
to the performance by the Placement Agent of its obligations
hereunder
the
offer and sale of the Securities complies,
and
will continue to comply,
in all
material respects with the requirements of Rule 506 of Regulation D promulgated
by the SEC pursuant to the 1933 Act and any other applicable federal and state
laws, rules, regulations and executive orders. Neither the Offering Materials
nor any amendment or supplement thereto nor any documents prepared by the
Company in connection with the Offering will 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. All statements of material facts in the
Offering Materials are true and correct as of the date of the Offering
Materials.
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(xiii) All
material
taxes which are due and payable from the Company have been paid in full or
adequate provision has been made for such taxes on the books of the
Company,
except
for those taxes disputed in good faith by
the
Company
(xiv) None
of
the Company nor any of its officers, directors, employees or agents, nor any
other person acting on behalf of the Company, has, directly or indirectly,
given
or agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official or employee
of any governmental agency or instrumentality of any government (domestic or
foreign) or any political party or candidate for office (domestic or foreign)
or
other person who is or may be in a position to help or hinder the business
of
the Company (or assist it in connection with any actual or proposed transaction)
which (A) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, or (B) if not given in the
past, might have had a materially adverse effect on the assets, business or
operations of the Company as reflected in any of the financial statements
contained in the Offering Materials, or (C) if not continued in the future,
might adversely affect the assets, business, operations or prospects of the
Company in the future.
5. Certain
Covenants and Agreements of the Company.
The
Company covenants and agrees at its expense and without any expense to the
Placement Agent as follows:
A. To
advise
the Placement Agent of
any
material adverse change in the Company’s financial condition, prospects or
business or of any development materially affecting the Company or rendering
untrue or misleading any material statement in the Offering Materials occurring
at any time as soon as the Company is either informed or becomes aware
thereof.
B. To
use
its commercially reasonable efforts to cause the Common Stock issuable in
connection with the Standby Equity Distribution Agreement to be qualified or
registered for sale on terms consistent with those stated in the Registration
Rights Agreement and under the securities laws of such jurisdictions as the
Placement Agent shall reasonably request. Qualification, registration and
exemption charges and fees shall be at the sole cost and expense of the
Company.
C. Upon
written request, to provide and continue to provide the Placement Agent copies
of all quarterly financial statements and audited annual financial statements
prepared by or on behalf of the Company, other reports prepared by or on behalf
of the Company for public disclosure and all documents delivered to the
Company’s stockholders.
D. To
comply
with the terms of the Offering Materials.
E. To
ensure
that any transactions between or among the Company, or any of its officers,
directors and affiliates be on terms and conditions that are no less favorable
to the Company, than the terms and conditions that would be available in an
“arm’s length” transaction with an independent third party.
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F. Upon
the
effectiveness of a registration statement covering the Securities, the Company
shall promptly provide the Placement Agent shall an opinion of Counsel to the
Company, which opinion shall be in form and substance reasonably satisfactory
to
and the Placement Agent.
G. At
or
prior to the Closing, the Company shall have been furnished such documents,
certificates and opinions as it may reasonably require for the purpose of
enabling the Placement Agent to review or pass upon the matters referred to
in
this Agreement and the Offering Materials, or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions herein contained.
6. Indemnification
and
Limitation of Liability.
A. The
Company hereby agrees that it will indemnify and hold the Placement Agent and
each officer, director, shareholder, employee or representative of the Placement
Agent and each person controlling, controlled by or under common control with
the Placement Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act or the SEC’s Rules and Regulations promulgated thereunder
(the “Rules
and Regulations”),
harmless from and against any and all loss, claim, damage, liability, cost
or
expense whatsoever (including, but not limited to, any and all reasonable legal
fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or proceeding,
including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any
action, suit or proceeding, including any inquiry, investigation or pretrial
proceeding such as a deposition) to which the Placement Agent or such
indemnified person of the Placement Agent may become subject under the 1933
Act,
the 1934 Act, the Rules and Regulations, or any other federal or state law
or
regulation, common law or otherwise, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (a)
Section 4 of this Agreement, (b) the Offering Materials (except those written
statements relating to the Placement Agent given by the
Placement Agent
for
inclusion therein), (c) any application or other document or written
communication executed by the Company or based upon written information
furnished by the Company filed in any jurisdiction in order to qualify the
Common Stock under the securities laws thereof, or any state securities
commission or agency; (ii) the omission or alleged omission from documents
described in clauses (a), (b) or (c) above of a material fact required to be
stated therein or necessary to make the statements therein not misleading;
or
(iii) the breach of any representation, warranty, covenant or agreement made
by
the Company in this Agreement. The Company further agrees that upon demand
by an
indemnified person, at any time or from time to time, it will promptly reimburse
such indemnified person for any loss, claim, damage, liability, cost or expense
actually and reasonably paid by the indemnified person as to which the Company
has indemnified such person pursuant hereto. Notwithstanding the foregoing
provisions of this Paragraph 7(A), any such payment or reimbursement by the
Company of fees, expenses or disbursements incurred by an indemnified person
in
any proceeding in which a final judgment by a court of competent jurisdiction
(after all appeals or the expiration of time to appeal) is entered against
the
Placement Agent or such indemnified person based upon specific finding of fact
that the Placement Agent or such indemnified person’s gross negligence or
willful misfeasance will be promptly repaid to the Company.
7
B. The
Placement Agent hereby agrees that it will indemnify and hold the Company and
each officer, director, shareholder, employee or representative of the Company,
and each person controlling, controlled by or under common control with the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act or the Rules and Regulations, harmless from and against any and all
loss, claim, damage, liability, cost or expense whatsoever (including, but
not
limited to, any and all reasonable legal fees and other expenses and
disbursements incurred in connection with investigating, preparing to defend
or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in appearing
or preparing for appearance as a witness in any action, suit or proceeding,
including any inquiry, investigation or pretrial proceeding such as a
deposition) to which the Company or such indemnified person of the Company
may
become subject under the 1933 Act, the 1934 Act, the Rules and Regulations,
or
any other federal or state law or regulation, common law or otherwise, arising
out of or based upon (i) the material
breach of any representation, warranty, covenant or agreement made by the
Placement Agent in this Agreement, or (ii)
any
false or misleading information provided to the Company in
writing by
one of
the Placement Agent’s indemnified persons
specifically for inclusion in the Offering Materials.
C. Promptly
after receipt by an indemnified party of notice of commencement of any action
covered by Section 7(A) or (B), the party to be indemnified shall, within five
(5) business days, notify the indemnifying party of the commencement thereof;
the omission by one (1) indemnified party to so notify the indemnifying
party shall not relieve the indemnifying party of its obligation to indemnify
any other indemnified party that has given such notice and shall not relieve
the
indemnifying party of any liability outside of this indemnification if not
materially prejudiced thereby. In the event that any action is brought against
the indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent it may desire, to assume and control the defense
thereof with counsel chosen by it which is reasonably acceptable to the
indemnified party. After notice from the indemnifying party to such indemnified
party of its election to so assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under such Section 7(A) or (B),
for
any legal or other expenses subsequently incurred by such indemnified party
in
connection with the defense thereof, but the indemnified party may, at its
own
expense, participate in such defense by counsel chosen by it, without, however,
impairing the indemnifying party’s control of the defense. Subject to the
proviso of this sentence and notwithstanding any other statement to the contrary
contained herein, the indemnified party or parties shall have the right to
choose its or their own counsel and control the defense of any action, all
at
the expense of the indemnifying party if (i) the employment of such
counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action at the expense of the indemnifying party, or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to such indemnified party to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or
(iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any
of
which events such fees and expenses of one additional counsel shall be borne
by
the indemnifying party; provided, however, that the indemnifying party shall
not, in connection with any one action or separate but substantially similar
or
related actions in the same jurisdiction arising out of the same general
allegations or circumstance, be liable for the reasonable fees and expenses
of
more than one separate firm of attorneys at any time for all such indemnified
parties. No settlement of any action or proceeding against an indemnified party
shall be made without the consent of the indemnifying party.
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D. In
order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for in Section 7(A) or 7(B) is due in accordance with
its terms but is for any reason held by a court to be unavailable on grounds
of
policy or otherwise, the Company and the Placement Agent shall contribute to
the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with the investigation or defense
of
same) which the other may incur in such proportion so that the Placement Agent
shall be responsible for such percent of the aggregate of such losses, claims,
damages and liabilities as shall equal the percentage of the gross proceeds
paid
to the Placement Agent and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation within
the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7(D), any person controlling, controlled by or under
common control with the Placement Agent, or any partner, director, officer,
employee, representative or any agent of any thereof, shall have the same rights
to contribution as the Placement Agent and each person controlling, controlled
by or under common control with the Company within the meaning of Section 15
of
the 1933 Act or Section 20 of the 1934 Act and each officer of the Company
and
each director of the Company shall have the same rights to contribution as
the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party
in
respect of which a claim for contribution may be made against the other party
under this Section 7(D), notify such party from whom contribution may be sought,
but the omission to so notify such party shall not relieve the party from whom
contribution may be sought from any obligation they may have hereunder or
otherwise if the party from whom contribution may be sought is not materially
prejudiced thereby.
E. The
indemnity and contribution agreements contained in this Section 7 shall remain
operative and in full force and effect regardless of any investigation made
by
or on behalf of any indemnified person or any termination of this
Agreement.
F. The
Company hereby waives, to the fullest extent permitted by law, any right to
or
claim of any punitive, exemplary, incidental, indirect, special, consequential
or other damages (including, without limitation, loss of profits) against the
Placement Agent and each officer, director, shareholder, employee or
representative of the placement agent and each person controlling, controlled
by
or under common control with the Placement Agent within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and Regulations
arising out of any cause whatsoever (whether such cause be based in contract,
negligence, strict liability, other tort or otherwise). Notwithstanding anything
to the contrary contained herein, the aggregate liability of the Placement
Agent
and each officer, director, shareholder, employee or representative of the
Placement Agent and each person controlling, controlled by or under common
control with the Placement Agent within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act or the Rules and Regulations shall not exceed
the compensation received by the Placement Agent pursuant to Section 2 hereof.
This limitation of liability shall apply regardless of the cause of action,
whether contract, tort (including, without limitation, negligence) or breach
of
statute or any other legal or equitable obligation.
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7. Payment
of Expenses.
The
Company hereby agrees to bear all of the expenses in connection with the
Offering, including, but not limited to the following: filing fees, printing
and
duplicating costs, advertisements, postage and mailing expenses with respect
to
the transmission of Offering Materials, registrar and transfer agent fees,
escrow agent fees and expenses, fees of the Company’s counsel and accountants,
issue and transfer taxes, if any.
8. Termination.
This
Agreement shall be co-terminus with, and terminate upon the same terms and
conditions as those set forth in the Standby Equity Distribution Agreement.
9. Miscellaneous.
A. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all which shall be deemed to be one and the same
instrument.
B. Any
notice required or permitted to be given hereunder shall be given in writing
and
shall be deemed effective when deposited in the United States mail, postage
prepaid, or when received if personally delivered or faxed (upon confirmation
of
receipt received by the sending party), addressed as follows
to such
other address of which written notice is given to the others):
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If
to Placement Agent, to:
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Monitor
Capital Inc.
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0000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
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Xxx
Xxxxx, XX 00000
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Attention: Hsiao-Xxx
Xxx
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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If
to Company, to:
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0000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx,
XX 00000
|
|
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Attention: Xxxxx
Xxxxx
|
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Telephone: (000)
000-0000
|
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Facsimile: (000)
000-0000
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10
|
With
a copy to:
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Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
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000
X. Xxxxxxxx Xxxx. - Xxxxx 0000
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Xxxxx,
XX 00000
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Attention: Xxxx
X. Xxxxxx, Esq.
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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C. This
Agreement shall be governed by and construed in all respects under the laws
of
the State of New Jersey, without reference to its conflict of laws rules or
principles. Any suit, action, proceeding or litigation arising out of or
relating to this Agreement shall be brought and prosecuted in such federal
or
state court or courts located within the State of Florida as provided by law.
The parties hereby irrevocably and unconditionally consent to the jurisdiction
of each such court or courts located within the State of Florida and to service
of process by registered or certified mail, return receipt requested, or by
any
other manner provided by applicable law, and hereby irrevocably and
unconditionally waive any right to claim that any suit, action, proceeding
or
litigation so commenced has been commenced in an inconvenient
forum.
D. This
Agreement and the other agreements referenced herein contain the entire
understanding between the parties hereto and may not be modified or amended
except by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought.
E. If
any
provision of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision of this
Agreement.
[REMAINDER
OF PAGE INTENTIALLY LEFT BLANK]
11
IN
WITNESS WHEREOF, the parties hereto have executed this Placement Agent
Agreement as of the date first written above.
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COMPANY:
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||
| |
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| By: | /s/ | |
|
Xxxxx X. Xxxxx
Chief Executive
Officer
|
||
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PLACEMENT
AGENT:
MONITOR
CAPITAL INC.
|
||
| |
|
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| By: | /s/ | |
|
Hsiao-Xxx Xxx
President
|
||
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INVESTOR:
CORNELL
CAPITAL PARTNERS, LP
|
||
| By: | Yorkville Advisors, LLC | |
| Its: | General Partner | |
| |
|
|
| By: | /s/ | |
|
Xxxx Xxxxxx
Portfolio
Manager
|
||
