M-WISE INC.
PLACEMENT AGENT AGREEMENT
Dated as of:
The undersigned, m-Wise Inc., a corporation (the "COMPANY"), hereby agrees with
Instream Partners LLC (the "PLACEMENTAGENT") and Dutchess Private Equities Fund,
L.P., a Delaware Limited Partnership (the "INVESTOR") as follows:
1. OFFERING. The Company hereby engages the Placement Agent to act as
its exclusive placement agent in connection with the Investment
Agreement dated (the "INVESTMENT 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) of the Company's Common Stock (the
"COMMITMENT AMOUNT"), par value $0.0017 per share (the "COMMON
STOCK"), at price per share equal to the Purchase Price, as that
term is defined in the Investment Agreement. Pursuant to the terms
hereof, the Placement Agent shall render consulting services to the
Company with respect to the Investment Agreement and shall be
available for consultation in connection with the advances to be
requested by the Company pursuant to the Investment Agreement. All
capitalized terms used herein and not otherwise defined herein shall
have the same meaning ascribed to them as in the Investment
Agreement. The Investor will be granted certain registration rights
with respect to the Common Stock as more fully set forth in a
Registration Rights Agreement between the Company and the Investor
dated (the "REGISTRATION RIGHTS AGREEMENT"). The documents to be
executed and delivered in connection with the Offering, including,
but not limited, to this Agreement, the Investment Agreement, and
the Registration Rights Agreement, and any Prospectus or other
disclosure document ( including all amendments and supplements )
utilized in connection with the Offering are referred to sometimes
hereinafter collectively as the "OFFERING MATERIALS." The Company's
Common Stock is sometimes referred to hereinafter as the
"SECURITIES." The Placement Agent shall not be obligated to sell any
Securities and this Offering by the Placement Agent shall be solely
on a "best efforts basis."
2. 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.
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(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 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 there under (the "RULES AND REGULATIONS") or
applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all reasonable efforts to determine
(a) whether the Investor is an Accredited Investor and (b) that any
information furnished by the Investor is true and accurate. The
Placement Agent shall have no obligation to insure that (x) any
check, note, draft or other means of payment for the Common Stock
will be honored, paid or enforceable against the Investor in
accordance with its terms, or (y) subject to the performance of the
Placement Agent's obligations and the accuracy of the Placement
Agent's representations and warranties hereunder, (1) the Offering
is exempt from the registration requirements of the 1933 Act or any
applicable state "Blue Sky" law or (2) the Investor is an Accredited
Investor.
(vi) 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 compliance with all
material rules and regulations applicable to the Placement Agent
generally and applicable to the Placement Agent's participation in
the Offering.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
A. The Company makes to the Placement Agent all the
representations and warranties it makes to the Investor in the
Investment Agreement and, in addition, represents and warrants
as follows:
(i) The execution, delivery and performance of each of this
Agreement, the Investment Agreement and the Registration Rights
Agreement has been or will be duly and validly authorized by the
Company and is, and with respect to this Agreement, the Investment
Agreement and the Registration Rights Agreement will each 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 Investment Agreement have been (A) duly
authorized and, when issued and paid for in accordance with this
Agreement and the Investment Agreement will be fully paid and
non-assessable; and (B) issued in compliance with all federal and
state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right..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 Investment 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
Investment Agreement, dated the date hereof 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. As
of the date hereof, the authorized capital stock of the Company
consists of 210,000,000 shares of Common Stock, par value $0.0017
per share of which 113,514,158 shares of Common Stock are issued and
outstanding.
[(iii) The Common Stock to be issued in accordance with this
Agreement and the Investment Agreement has been duly authorized and
when issued and paid for in accordance with this Agreement, the
Investment 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.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
A. The Investor makes to the Placement Agent all the
representations and warranties it makes to the Company in the
Investment Agreement and, in addition represents, warrants and
covenants as follows:
(i) The Investor has the necessary power to enter into this
Agreement and to consummate the transactions contemplated hereby.
(ii)The execution and delivery by the Investor of this Agreement and
the consummation of the transactions contemplated herein will not
result in any violation of, or be in conflictwith, or constitute a
default under, any agreement or instrument to which the Investor is
a party or by which the Investor or its properties are bound, or any
judgment, decree, order or, to the Investor's knowledge, any
statute, rule or regulation applicable to the Investor. This
Agreement when executed and delivered by the Investor, will
constitute the legal, valid and binding obligations of the Investor,
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.
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(iii) the Investor is not, and will not be, as a result of the
transactions contemplated by the Offering Materials a "dealer"
within the meaning of the Securities Exchange Act of 1934 and
applicable federal and state securities laws and regulations. The
Investor covenants that in this respect it is and will remain in
compliance with the requirements of applicable "no action" rulings
of the U.S. Securities Exchange Commission.
(iv) The Investor will promptly forward copies of any and all due
diligence questionnaires compiled by the Investor to the Placement
Agent.
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 Equity Line of Credit 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 or the Investor
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 and the Investor 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 deliver, during the registration period of the Investment
Agreement, to the Placement Agent upon the Placement Agent's
request,
(i) within forty five (45) days after the expiration of the relevant
period, a statement of its income for each such quarterly period,
and its balance sheet and a statement of changes in stockholders'
equity as of the end of such quarterly period, all in reasonable
detail, certified by its principal financial or accounting officer;
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(ii) within ninety (90) days after the close of each fiscal year,
its balance sheet as of the close of such fiscal year, together with
a statement of income, a statement of changes in stockholders'
equity and a statement of cash flow for such fiscal year, such
balance sheet, statement of income, statement of changes in
stockholders' equity and statement of cash flow to be in reasonable
detail and accompanied by a copy of the certificate or report
thereon of independent auditors if audited financial statements are
prepared; and
(iii) a copy of all documents, reports and information furnished to
its stockholders at the time that such documents, reports and
information are furnished to its stockholders.
(iv) a copy of all documents, reports and information furnished to
the Investor at the time that such documents, reports and
information are furnished to the Investor.
E. To comply with the terms of the Offering Materials.
F. 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.
6. INDEMNIFICATION.
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 there
under (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 3 or 4 of this Agreement, (b)
the Offering Materials including the offering memorandum, and any
slides, videos, films and tape recordings pertaining to the offering
(except those written statements relating to the Placement Agent
given by an indemnified person 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 6(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 as to the
Placement Agent or such indemnified person's gross negligence or
willful misfeasance will be promptly repaid to the Company.
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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 conduct of the Placement Agent or its officers, employees or
representatives in willful violation of any of such laws and
regulations while acting as Placement Agent for the Offering or (ii)
the material breach of any representation, warranty, covenant or
agreement made by the Placement Agent in this Agreement (iii) any
materially false or misleading information provided to the Company
by one of the Placement Agent's indemnified persons.
C. The Investor 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 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) the conduct of the Investor or its
officers, employees or representatives in its acting as the Investor
for the Offering or (ii) the material breach of any representation,
warranty, covenant or agreement made by the Investor in this
Agreement (iii) any false or misleading information provided to the
Placement Agent by the Investor or one of the Investor's indemnified
persons.
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D. The Placement Agent hereby agrees that it will indemnify and hold
the Investor and each officer, director, shareholder, employee or
representative of the Investor, andcontrolling, controlled by or
under common control with the Investor 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 Investor or such indemnified person of the Investor 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 conduct of the
Placement Agent or its officers, employees or representatives in
willful violation of any of such laws and regulations while acting
as the Placement Agent for the Offering or (ii) the material breach
of any representation, warranty, covenant or agreement made by the
Placement Agent in this Agreement or (iii) any false or misleading
information provided to the Investor by one of the Placement Agent's
indemnified persons.
E. Promptly after receipt by an indemnified party of notice of
commencement of any action covered by Section 6(A), (B), (C) or (D),
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 6(A), (B), (C), or (D) 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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F. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 6
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 and the Investor 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 Company, the Placement Agent and the Investor
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 each of them.; 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 6(F), 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 and each person controlling, controlled by or under common
control with the Investor within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and each member of the
general partner of the Investor 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 6(F), 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. The
indemnity and contribution agreements contained in this Section 6
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.
7. FEES. The Company hereby agrees to pay the Placement Agent 1% for
the gross proceeds from each Put with a maximum of five thousand
dollars ($5,000) upon the execution of this Agreement.
8. 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, and expenses, fees of the Company's counsel and accountants,
issue and transfer taxes, if any. The Company agrees to bear all the
reasonable expenses of the Placement Agent in performing its
services under this Agreement including but not limited to the fees
and expenses of counsel.
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9. CONDITIONS OF CLOSING. The Closing shall be held at the offices of
the Investor or its counsel. The obligations of the Placement Agent
hereunder shall be subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date
hereof and as of the Date of Closing (the "Closing Date") with
respect to the Company as if it had been made on and as of such
Closing Date; the accuracy on and as of the Closing Date of the
statements of the officers of the Company made pursuant to the
provisions hereof; and the performance by the Company on and as of
the Closing Date of its covenants and obligations hereunder and to
the following further conditions:
A. Upon the effectiveness of a registration statement in accordance
with the Investment Agreement, the Placement Agent shall receive the
opinions of Counsel to the Company and of the Investor, dated as of
the date thereof, which opinion shall be in form and substance
reasonably satisfactory to the Investor, the Company, their counsel
and the Placement Agent.
B. At or prior to the Closing, the Placement Agent shall have been
furnished such documents, certificates and opinions as it may
reasonably require for the purpose of enabling them 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.
C. At and prior to the Closing, (i) there shall have been no material
adverse change nor development involving a prospective change in the
condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such
condition is set forth in the Offering Materials; (ii) there shall
have been no transaction, not in the ordinary course of business
except the transactions pursuant to the Investment Agreement entered
into by the Company which has not been disclosed in the Offering
Materials or to the Placement Agent in writing; (iii) except as set
forth in the Offering Materials, the Company shall not be in default
under any provision of any instrument relating to any outstanding
indebtedness for which a waiver or extension has not been otherwise
received; (iv) except as set forth in the Offering Materials, the
Company shall not have issued any securities (other than those to be
issued as provided in the Offering Materials) or declared or paid
any dividend or made any distribution of its capital stock of any
class and there shall not have been any change in the indebtedness
(long or short term) or liabilities or obligations of the Company
(contingent or otherwise) and trade payable debt; (v) no material
amount of the assets of the Company shall have been pledged or
mortgaged, except as indicated in the Offering Materials; and (v) no
action, suit or proceeding, at law or in equity, against the Company
or affecting any of its properties or businesses shall be pending or
threatened before or by any court or federal or state commission,
board or other administrative agency, domestic or foreign, wherein
an unfavorable decision, ruling or finding could materially
adversely affect the businesses, prospects or financial condition or
income of the Company, except as set forth in the Offering
Materials.
D. At Closing, the Placement Agent shall receive a certificate of the
Company signed by an executive officer and chief financial officer,
dated as of the applicable Closing, to the effect that the
conditions set forth in subparagraph (C) above have been satisfied
and that, as of the applicable closing, the representations and
warranties of the Company set forth herein are true and correct.
10. TERMINATION. This Agreement shall be co-terminus with, and terminate
upon the same terms and conditions as those set forth in, the
Investment Agreement. The rights of the Investor and the obligations
of the Company under the Registration Rights Agreement, and the
rights of the Placement Agent and the obligations of the Company
shall survive the termination of this Agreement unabridged for a
period of twenty-four (24) months after the Closing Date.
Notwithstanding the foregoing, Section 6 of this Agreement shall
survive any termination of this Agreement or the issuance and
delivery of the Securities contemplated herein.
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11. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company and the Investor
acknowledge and agree that the Placement Agent is acting solely in
the capacity of an arm's length contractual counterparty to the
Company and the Investor with respect to the transactions
contemplated in this Agreement and the Investor Agreement and not as
a financial advisor or a fiduciary to, or an agent of, the Company,
the Investor or any other person. Additionally, the Placement Agent
is not advising the Company, the Investor or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company and the Investor shall consult with their
own advisors concerning such matters and shall be responsible for
making their own independent investigation and appraisal of the
transaction contemplated hereby, and the Placement Agent shall have
no responsibility or liability to the Company or the Investor with
respect thereto. Any review by the Placement Agent of the Company,
the transactions contemplated hereby or other matters relating to
the transactions will be for the benefit of the Placement Agent and
shall not be on behalf of the Company or the Investor.
12. 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:
If to Placement Agent, to:
With a copy to:
If to the Company, to:
Xxxx Xxx-Xxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XXXXXX 00000
Telephone: 000-0-000-0000
Facsimile: 000-0-0000000
With a copy to:
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If to the Investor:
Dutchess Private Equities fund, LP
000 Xxxxxx Xx.
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address of which written notice is given to the others.
C. This Agreement shall be governed by and construed in all respects
under the laws of the State of Delaware, 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 Commonwealth of Massachusetts as provided by law.
The parties hereby irrevocably and unconditionally consent to the
jurisdiction of each such court or courts located within the
Commonwealth of Massachusetts 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
COMPANY:
m-Wise Inc.
By: /S/ Xxxx Xxx-Xxxxxx
--------------------------------
Name: Xxxx Xxx-Xxxxxx
Title: Chairman
PLACEMENT AGENT:
Instream Partners LLC
By: /S/ Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
By: /S/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A Managing Member
