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EXHIBIT 10.081
PLACEMENT AGENCY AGREEMENT
THIS AGREEMENT ("AGREEMENT"), made as of the 30 day of June, 1999, by
and between Allergy Superstore,com, Inc., a Delaware corporation ("COMPANY"),
and X.X. Xxxxx Securities, Inc., a Georgia corporation (the "AGENT").
WITNESSETH:
WHEREAS, the Company proposes to issue and sell to certain investors
(the "INVESTORS") shares of Common Stock, par value $0.001 per share ("COMMON
STOCK") and Warrants resulting in gross proceeds up to $15,000,000 (the Common
Stock and Warrants to be sold, hereinafter referred to as the "SECURITIES")
(the "OFFERING") not involving a public offering without registration under the
Securities Act of 1933, as amended (the "'33ACT"), pursuant to exemptions from
the registration requirements of the Act under Regulation D promulgated under
the Act ("REGULATION D"), as described below; and
WHEREAS, the Agent has offered to assist the Company in placing the
Securities on a "best efforts basis", 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 its
non-exclusive placement agent for the Offering, to sell up to $15,000,000 of
securities (the "MAXIMUM SECURITIES") on a "best efforts basis," resulting in
gross proceeds to the Company of up to $15,000,000. The Offering shall be made
in one or more tranches (the "Tranches"). The Agent, subject to the terms and
conditions herein set forth, accepts such appointment and agrees to use its
best efforts to find purchasers for the Securities.
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:
2.1 Offering Documents. The Company, BioShield Technologies, Inc.
("BSTI"), and the Investors have prepared a Securities Purchase Agreements,
Registration Rights Agreement and certain exhibits thereto in connection with
the sale of the Securities, which documents have been or will be sent to the
Investors. As used in this Agreement, the term "Offering Documents" refers to
and means the Securities Purchase Agreement, Registration Rights Agreements,
and certain exhibits thereto and all amendments, exhibits and supplements
thereto, together with any other documents which are provided to the Agent by,
or approved for Agent's use by, the Company for the purpose of this Offering.
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2.2 Provision of Offering Documents. The Company shall deliver to the
Agent, without charge, as many copies of the Offering Documents as the Agent
may reasonably require for the purposes contemplated by this Agreement. The
Company authorizes the Agent, in connection with the Offering of the
Securities, to use the Offering Documents as from time to time amended or
supplemented in connection with the offering and sale of the Securities and in
accordance with the applicable provisions of the `33 Act and Regulation D. The
Company consents to the Agent's distribution of the Offering Documents to the
Investor as a disclosure document about the Company, its business, prospects,
financial condition and other matters.
2.3 Accuracy of Offering Documents. The Offering Documents, at the
time of filing, conformed in all material respects with the requirements, to
the extent applicable, of the `34 Act and the applicable Rules and Regulations
and did not include 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. On each Closing Date (as hereinafter defined), the Offering
Documents will contain all statements which are required to be stated therein
in accordance with the `34 Act and the Rules and Regulations for the purposes
of the proposed Offering, and all statements of material fact contained in the
Offering Documents will be true and correct, and the Offering Documents will
not include 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; provided, however, that the Company does not make any
representations or warranties as to the information contained in or omitted
from the Offering Documents in reliance upon written information furnished on
behalf of the Agent or the Investors specifically for use therein.
2.4 Duty to Amend. If during such period of time as in the opinion of
the Agent or its counsel any Offering Documents relating to this offering are
required to be delivered under the `34 Act, any event occurs or any event known
to the Company relating to or affecting the Company shall occur as a result of
which the Offering Documents as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if it is necessary at any time after
the date hereof to amend or supplement the Offering Documents to comply with
the `34 Act or the applicable Rules and Regulations, the Company shall
forthwith notify the Agent thereof and shall prepare such further amendment or
supplement to the Offering Documents as may be required and shall furnish and
deliver to the Agent and to others, whose names and addresses are designated by
the Agent, all at the cost of the Company, a reasonable number of copies of the
amendment or supplement or of the amended or supplemented Offering Documents
which, as so amended or supplemented, will not contain an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
Offering Documents not misleading in the light of the circumstances when it is
delivered to the Investor and which will comply in all respects with the
requirements (to the extent applicable) of the `34 Act and the applicable Rules
and Regulations.
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2.5 Incorporation and Standing. The Company is, and at each Closing
Date will be, duly formed and validly existing in good standing as a
corporation under the laws of the State of Delaware and with full power and
authority (corporate and other) to own its properties and conduct its business,
present and proposed, as described in the Offering Documents; the Company, has
full power and authority to enter into this Agreement; and the Company is duly
qualified and in good standing as a foreign entity in each jurisdiction in
which the failure to so qualify would have a material adverse effect on the
Company or its properties.
2.6 Legality of Outstanding Securities. Prior to each Closing Date,
the outstanding securities of the Company have been duly and validly authorized
and issued, fully paid and nonassessable and conform in all material respects
to the statements with regard thereto contained in the Offering Documents.
2.7 Legality of Securities. The Securities, when sold and delivered,
will constitute legal, valid and binding obligations of the Company,
enforceable in accordance with the terms thereof, and shall be duly and validly
issued and outstanding, fully paid and nonassessable. The Securities, when
issued, shall be duly and validly issued and outstanding, fully paid and
non-assessable.
2.8 Litigation. Except as set forth in the Offering Documents, there
is now, and at each Closing Date there will be, no action, suit or proceeding
before any court or governmental agency, authority or body pending or, to the
knowledge of the Company, threatened, which might result in judgements against
the Company not adequately covered by insurance or which collectively might
result in any material adverse change in the condition (financial or otherwise)
or business of the Company or which would materially adversely affect the
properties or assets of the Company.
2.9 Finders. The Company does not know of any outstanding claims for
services in the nature of a finder's fee or origination fees with respect to
the sale of the Securities hereunder for which the Agent may be responsible,
and the Company will indemnify the Agent from any liability for such fees by
any party who has a claim for such compensation from the Company and for which
person the Agent is not legally responsible.
2.10 Authority. 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 subject
to standard qualifications as to the availability of equitable remedies, the
effect of bankruptcy and other laws relating to the protection of debtors and
public policy opinions promulgated by the Commission with respect to
indemnification against liabilities under the `33 Act.
3. Issue, Sale and Delivery of the Securities.
3.1 Deliveries of Securities. Certificates in such form that, subject
to applicable transfer restrictions as described in the Securities Purchase
Agreement, they can be negotiated by the Investor for the Securities, and
warrants representing the Agent's warrant compensation described in Section
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3.4 below ("WARRANTS"), shall be delivered by the Company to the Escrow Agent,
with copies made available to the Agent for checking at least one (1) full
business day prior to the first Closing Date. The certificates for the
Securities and the Warrants shall be delivered at the Closing (as defined
hereinafter).
3.2 Escrow of Funds. Pursuant to the Escrow Agreement, a copy of which
is attached hereto as Exhibit "B" (the "ESCROW AGREEMENT"), executed by the
Company, the Agent and the escrow agent (the "ESCROW AGENT"), the Investor
shall place all funds for purchase of Securities and the Company will place the
Securities for each Closing in an escrow account set up by the Escrow Agent.
Upon each Closing, Escrow Agent shall release the subscription funds to the
Company and the certificates representing the Securities shall be released by
the Company to the Investor (the "CLOSING").
3.3 Closing Date. Each Closing shall take place at the offices of Xxxx
Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000, 0000 Xxxxxxxxx
Xxxx, XX, Xxxxxxx, Xxxxxxx 00000 at such time and date ("CLOSING DATE") as
mutually agreed by the Company and the Agent. The Closing Date may be changed
by mutual agreement of the Investor and the Company.
3.4 Agent's Compensation. The Company shall pay the Agent:
(a) A commission of four percent (4%) of the gross
subscription proceeds (the "AGENT FEE") of each Tranche (the "GROSS
PROCEEDS") to be paid upon each Closing on each Closing Date; and
(b) In addition to the fees and reimbursement of costs set
forth in Sections 3.4 and 3.5 of this Agreement, the Company shall
issue to the Agent warrants ("WARRANTS") to purchase shares of the
Company's Common Stock, in an amount equal to Warrants to purchase
6,666 shares of Common Stock for each $1,000,000 of Gross Proceeds of
each, which shall be exercisable for the Company's Common Stock on a
one-for-one basis at a price per share equal to the fair value of a
share of the Company's Common Stock on the day immediately prior to
each closing. The Warrants shall have cashless exercise provisions.
The term of the Warrants shall be five years. The Agent agrees to
enter into any contractual lock-up agreements which may be required by
the Company's underwriters in connection with an underwritten public
offering of the Company's Securities or other securities. Fifty
percent (50%) of the Agent Fee shall be paid to Agent and fifty
percent (50%) shall be paid to Greenfield Capital Partners, LLC as
sub-agent ("SUB-AGENT"). Sub-Agent shall receive a portion of the
Warrants as determined by Agent and Sub-Agent.
3.5 Payment of Fees. The Escrow Agent shall be instructed to pay all
fees and cost reimbursements and Warrants pursuant to section 3.4 of this
Agreement, directly to the Agent from the Gross Proceeds of the Closing,
simultaneously with the transfer of Gross Proceeds to the Company.
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4. Offering of the Securities on Behalf of the Company.
4.1 In offering the Securities for sale, the Agent shall offer them
solely as an agent for the Company, and such offer shall be made upon the terms
and subject to the conditions set forth in the Offering Documents. The Agent
shall commence making such offer as an agent for the Company as soon as
possible following delivery of the Offering Documents or in any manner
inconsistent with federal or state securities laws.
4.2 The Agent will not make offers to sell the Securities to, or
solicit offers to subscribe for any Securities from, persons or entities that
are not "accredited investors" as defined in Regulation D.
5. Confidentiality/Protection of Clients.
5.1 The Company agrees to maintain the confidentiality of the Agent's
clients, except as required by applicable law. Such clients shall be those
entities which invest or have been offered an opportunity to invest by the
Agent in the Offering (the "CLIENTS"). For a period of two years from the
Closing, the Company will not solicit or enter into any financing transaction
with the Clients without the written consent of Agent and payment to Agent
compensation no less than the compensation to be paid to Agent hereunder for
raising a like amount. The restrictions on the Company and Agent's right to
compensation described in the preceding sentence shall not apply to any Clients
included in a financing transaction as the result of the efforts of an agent or
other intermediary other than Agent.
5.2 In the event that Company breaches Section 5.1 of this Agreement,
Agent shall be entitled to receive compensation in the same proportion to the
financing done without Agent's participation as the compensation to Agent under
this Agreement bears to the financing raised in this Offering.
6. Covenants of the Company. The Company covenants and agrees with the
Agent that:
6.1 After the date hereof, the Company will not at any time, prepare
and distribute any amendment or supplement to the Offering Documents, of which
amendment or supplement the Agent shall not previously have been advised and
the Agent and its counsel furnished with a copy within a reasonable time period
prior to the proposed adoption thereof, or to which the Agent shall have
reasonably objected in writing on the ground that it is not in compliance with
the `34 Act or the Rules and Regulations (if applicable).
6.2 The Company will pay, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective or is terminated, all costs and expenses incident to the performance
of its obligations under this Agreement, including all expenses incident to the
authorization of the Securities and their issue and delivery to the Agent, any
original issue taxes in connection therewith, all transfer taxes, if any,
incident to the initial sale of the
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Securities, the fees and expenses of the Company's counsel (except as provided
below) and accountants, the cost of reproduction and furnishing to the Agent
copies of the Offering Documents as herein provided; provided, however, that
the Company shall not be responsible for the payment of fees and costs incurred
by Agent, including attorney's fees of or any costs incurred by the Agent's
counsel.
6.3 The Company shall be responsible for making any and all filings
required by the Blue Sky authorities and filings required by the laws of the
jurisdictions in which Investor is located, if any.
7. Indemnification.
7.1 The Company agrees to indemnify and hold harmless the Agent, each
person who controls the Agent within the meaning of Section 15 of the `33 Act
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 the '33Act or
any other 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 any untrue statement of material fact contained in the
Offering Documents or any amendment or supplement thereto or any application or
other document filed in any state or jurisdiction in order to qualify the
Securities under the Blue Sky or securities laws thereof, or the omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, under the circumstances under which they were
made, not misleading, all as of the date of the Offering Documents or of such
amendment as the case may be; provided, however, that the indemnity agreement
contained in this Section 7.1 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 such
untrue statement or alleged untrue statement or any such omission or alleged
omission, if such statement or omission was made in reliance upon information
furnished in writing to the Company by the Agent specifically for use in
connection with the preparation of the Offering Documents or any such amendment
or supplement thereto or any application or other document filed in any state
or jurisdiction in order to qualify the Securities under the Blue Sky or
securities law thereof. This indemnity agreement is in addition to any other
liability which 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 7.1, 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 agreement contained
in this Section 7.1, 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
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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
the issue and sale of any of the Securities and to furnish to the Agent's
Indemnitees, at their request, to provide copies of all pleadings therein and
to permit the Company's Indemnitees to be observers therein and apprise the
Agent's Indemnitees of all developments therein, all at the Company's expense.
7.2 The Agent agrees, in the same manner and to the same extent as set
forth in Section 7.1 above, to indemnify and hold harmless the Company, each
person who controls the Company within the meaning of Section 15 of the `33 Act
and the Company's and Company's employees, accountants, attorneys and agents
(the "COMPANY'S INDEMNITEES") with respect to (i) any statement in or omission
from the Offering Documents or any amendment or supplement thereto or any
application or other document filed in any state or jurisdiction in order to
qualify the Securities under the Blue Sky or securities laws thereof, or any
information furnished pursuant to this Agreement, if such statement or omission
was made in reliance upon information furnished in writing to the Company by
the Agent on its behalf specifically for use in connection with the preparation
thereof or supplement thereto, or (ii) any untrue statement of a material fact
made by the Agent or its agents not based on statements in the Offering
Documents or authorized in writing by the Company, or with respect to any
misleading statement made by the Agent or its agents resulting from the
omission of material facts which misleading statement is not based upon the
Offering Documents, or information furnished in writing by the Company or,
(iii) any breach of any representation, warranty or covenant made by the Agent
in this Agreement. The Agent shall not be liable for amounts paid in settlement
of any such litigation if such settlement was effected without its consent. In
case of the commencement of any action in respect of which indemnity may be
sought from the Agent, the Company's Indemnitees shall have the same obligation
to give notice as set forth in Section 7.1 above, subject to the same loss of
indemnity in the event such notice is not given, and the Agent shall have the
same right to participate in (and, to the extent that it shall wish, to direct)
the defense of such action at its own expense, but such defense shall be
conducted by counsel of recognized standing reasonably satisfactory to the
Company. The Agent agrees to notify the Company's Indemnitees and, at their
request, to provide copies of all pleadings therein and to permit the Company's
Indemnitees to be observers therein and apprise them of all the developments
therein, all at the Agent's expense.
8. Effectiveness of Agreement. This Agreement shall become effective
(i) at 9:00 a.m., New York City time, on the date hereof or (ii) upon release
by the Escrow Agent of the Securities for offering after the date hereof,
whichever shall last occur.
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9. Termination.
9.1 This Agreement may be terminated by the Agent by notice to the
Company in the event that the Company shall have failed or been unable to
comply with any of the terms, conditions or provisions of this Agreement on the
part of the Company to be performed, complied with or fulfilled within the
respective times, if any, herein provided for, unless compliance therewith or
performance or satisfaction thereof shall have been expressly waived by the
Agent in writing.
9.2 This Agreement may be terminated by the Company by notice to the
Agent in the event that the Agent shall have failed or been unable to comply
with any of the terms, conditions or provisions of this Agreement on the part
of the Agent to be performed, complied with or fulfilled within the respective
times, if any, herein provided for, unless compliance therewith or performance
or satisfaction thereof shall have been expressly waived by the Company in
writing.
9.3 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 3, 5, and 6; and the Company
and the Agent shall be obligated to pay, respectively, all losses, claims,
damages or liabilities, joint or several, under Section 7.1 in the case of the
Company and Section 7.2 in the case of the Agent.
10. Agent's Representations, Warranties, and Covenants. The Agent
represents and warrants to and agrees with the Company that:
10.1 Agent is a corporation duly incorporated and existing under the
laws of the state of Georgia Agent is registered with the Securities Exchange
Commission and the NASD.
10.2 There is not now pending or threatened against the Agent any
action or proceeding of which the Agent has been advised, either in any court
of competent jurisdiction, before the Commission or before any state securities
commission or the NASD, concerning the Agent's activities which would impair
the ability of the Agent to conduct the Offering as contemplated by this
Agreement.
10.3 All corporate actions by Agent required for the execution,
delivery and performance of this Agreement have been taken. The execution and
delivery of this Agreement by the Agent, the observance and performance
thereof, and the consummation of the transactions contemplated herein or in the
Offering Documents do not and will not constitute a material breach of, or a
material default under, any instrument or agreement by which the Agent is
bound, and does not and will not, to the best of the Agent's knowledge,
contravene any existing law, decree or order applicable to it. This Agreement
constitutes a valid and binding agreement of Agent, enforceable in accordance
with its terms.
10.4 Agent understands and acknowledges that the Securities are not
being registered under the '33 Act, and that the Offering is to be conducted
pursuant to Regulation D. Accordingly,
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in conducting its activities under this Agreement Agent shall offer Securities
only to "accredited investors," as defined in Regulation D.
10.5 Agent's representations and warranties under this Section shall
be true and correct as of the Closing, and shall survive the Closing for a
period of one year.
11. Notices. Except as otherwise expressly provided in this Agreement:
11.1 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:
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If to the Company:
Allergy Xxxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxxxxxx Xxxx.
Xxxxx X-000
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxx Xxxx Xxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11.2 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, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
11.3 Any notice instructing the Escrow Agent to distribute monies or
Securities held in Escrow must be signed by authorized agents of both the
Company and the Agent in order to be valid.
12. Miscellaneous.
12.1 Benefit. This Agreement is made solely for the benefit of the
Agent and the Company, their respective officers and directors and any
controlling person referred to in Section 15 of the `33 Act and their
respective successors and assigns, and no other person may acquire or have any
right under or by virtue of this Agreement, including, without limitation, the
holders of any Securities. The term "successor" or the term"successors and
assigns" as used in this Agreement shall not include any purchasers, as such,
of any of the Securities.
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12.2 Survival. The respective indemnities, agreements,
representations, warranties, covenants and other statements of the Company and
the Agent, or the officers, directors or controlling persons of the Company and
the Agent as set forth in or made pursuant to this Agreement and the indemnity
agreements of the Company and the Agent contained in Section 7 hereof shall
survive and remain in full force and effect for a period of three (3) years
from the date hereof, regardless of (i) any investigation made by or on behalf
of the Company or the Agent or any such officer, director or controlling person
of the Company or of the Agent; (ii) delivery of or payment for the Securities;
or (iii) the Closing Date, and any successor of the Company or the Agent or any
controlling person, officer or director thereof, as the case may be, shall be
entitled to the benefits hereof.
12.3 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Georgia without regard
to the principles of conflict of laws. Any dispute or controversy between the
parties arising in connection with this agreement or the subject matter
contemplated by this agreement shall be resolved by arbitration before a
three-member panel of the American Arbitration Association in accordance with
the commercial arbitration rules of said forum and the Federal Arbitration Act,
9 U.S.C. 1 et seq., with the resulting award being final and conclusive. Said
arbitrators shall be empowered to award all forms of relief and damages
claimed, including, but not limited to, attorney's fees, expenses of litigation
and arbitration, exemplary damages, and prejudgment interest. Notwithstanding
the foregoing, Agent may at any time and at its option, whether or not an
arbitration action is then pending, initiate a civil action for temporary and
permanent injunctive and other equitable relief against Company. Company
acknowledges that upon any breach of Agent's rights to Warrants or other
compensation hereunder, Agent's resulting injury may not be adequately
compensated by a remedy at law. Accordingly, upon such breach, Agent, at its
election and without limitation of its other remedies, shall be entitled to
pursue a claim for specific performance of this Agreement, and Company hereby
waives the right to assert any defense thereto that Agent has an adequate
remedy at law. The parties further agree that any arbitration action between
them shall be heard in Wilmington, Delaware.
12.4 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.
12.5 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.
12.6 Public Announcements. Prior to the Closing Date, neither party
hereto will issue any public announcement concerning the within transactions
without the approval of the other party.
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12.7 Finders. The parties acknowledge that no person has acted as a
finder in connection with the transactions contemplated herein and each will
agree to indemnify the other with respect to any other claim for a finder's fee
in connection with the offering.
12.8 Recitals. The recitals to this Agreement are a material part
hereof, and each recital is incorporated into this Agreement by reference and
made a part of this Agreement.
12.9 Independent Counsel. The parties to this Agreement acknowledge
that Company and BSTI have received independent counsel from the law firm of
Xxxx Xxxx Xxxxx & Xxxxx LLP which is acting as their counsel. Agent has been
advised by Xxxx Moss Kline & Xxxxx LLP to seek independent advice with respect
to the terms and conditions of this Agreement and any related agreements before
signing them.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the day and year first above written.
"THE COMPANY"
ALLERGY XXXXXXXXXX.XXX, INC.
By:
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Name: Xxxxxxx X. Xxxxx
Title: President
"THE AGENT"
X.X. XXXXX SECURITIES, INC.
By:
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Name:
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Title:
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