INTEGRATED PHARMACEUTICALS, INC. PLACEMENT AGENT AGREEMENT
EXHIBIT
10.11
INTEGRATED
PHARMACEUTICALS, INC.
Dated
as
of. December 22, 2006
The
undersigned, Integrated Pharmaceuticals, Inc., a Idaho corporation (the “COMPANY”),
hereby agrees
with US
EURO
Securities, Inc. (the “PLACEMENT AGENT”) and Dutchess Private Equities Fund,
Ltd., a a Cayman Islands exempted Company (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
December
22, 2006 (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 $0.01 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 December 22 (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. The Placement Agent
represents warrants and covenants as
follows:
|
| (i) |
The
Placement Agent has the necessary authority 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 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.
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| (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.
|
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 duly authorized and, when issued and
paid
for in accordance with (x) this Agreement, the Investment Agreement
and
the certificates/instruments representing such Securities, (y) 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.
|
| (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 75 million shares of Common Stock, par value
$.01 per
share of which 40,288,551 shares of Common Stock are issued and
outstanding and 20,000 shares of Preferred Stock, $.10 par value
per
share, none of which 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
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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.
|
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 conflict with, 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.
|
| (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.
|
| (v) |
The
Investor acknowledges that the Company has agreed to pay the Placement
Agent fees for its services from each advance or Put and that Company
has
instructed the Investor to pay this fee directly to Placement Agent
at the
time of disbursement of such funds; Investor agrees to notify Placement
Agent at the time of each such advance or draw down by Company and
to pay
the fee directly to 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 and 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
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documents
delivered to the Company’s stockholders.
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| D. |
To
deliver, during the registration period of the Investment Agreement,
to
the Placement Agent upon the Placement Agent’s
request,
|
| (vi) |
within
forty five (45) days, 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;
|
| (vii) |
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
|
| (viii) |
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.
|
| (ix) |
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.
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| G. |
The
Company acknowledges that the Company has agreed to pay
the Placement
Agent fees for its services
from each advance or Put and that Company has instructed
the Investor to
pay these fees directly
to
Placement Agent at the time of disbursement of such funds;
Company agrees
to notify Placement Agent at the time of each such advance
or draw down by
Company and to cooperate with the process of fees being
paid directly to
Placement Agent, until all fees due are
paid.
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| 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
4 of
this Agreement, (b) the Offering Materials (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
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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
false or
misleading information provided to the Company by one of the Placement
Agent’s indemnified persons. Notwithstanding the foregoing
provisions of this Paragraph 6(B), any such payment or reimbursement
by
the Placement Agent 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
such indemnified person based upon specific finding of fact as to
such
indemnified person’s gross negligence or willful misfeasance will be
promptly repaid to the Placement Agent. Placement Agent shall not
be
responsible for any such indemnity payment, loss, claim, damage or
liability beyond what amount of the gross proceeds was paid to
them.
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| 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
the Offering Materials
(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, 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 20of
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,
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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 (iii) any
false or
misleading information provided to the Investor by one of the Placement
Agent’s indemnified persons. Notwithstanding the foregoing provisions of
this Paragraph 6(D), any such payment or reimbursement by the Placement
Agent 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 such indemnified person based upon specific
finding of fact as to such indemnified person’s gross negligence
or
willful misfeasance will be promptly repaid to the Placement Agent.
Placement Agent shall not be responsible for any such indemnity payment,
loss, claim, damage or liability beyond what amount of the gross
proceeds
was paid to them.
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| 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
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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.
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| 7. |
FEES.
The Company hereby agrees to pay the Placement Agent $1,000 upon
the
execution of this agreement and $1,500 from the gross proceeds from
each
Put with a maximum of ten thousand dollars ($10,000.) The Company
agrees
to instruct the investor to pay the Placement Agent fees directly
to
Placement Agent.
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| 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.
|
| 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
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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.
|
| 11. |
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:
US
EURO
Securities, Inc
Corporate
Finance Department
000
Xxxxxxx Xxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
With
a
copy to:
Xxxxxxx
Xxx Xxxxxx
US
EURO
Securities, Inc.
00000
Xxxxxxx Xxx Xx., Xxxxx XX-0
Xxxxxxx
Xxx, XX 00000
If
to the
Company, to:
Integrated
Pharmaceuticals, Inc.
Xxxxxxx
Xxxxxxxxxx
000
Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
With
a
copy to:
Xxxxxx
X.
Xxxxx
Xxxxxxxx
& Sunstein LLP
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
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If
to the
Investor:
Dutchess
Private Equities Fund, Ltd
00
Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
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.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
| COMPANY: | PLACEMENT AGENT: |
|
By: /s/ Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: President and/or CEO
|
By: /s/ Xxxxxxx Xxx Xxxxxx
Name: Xxxxxxx Xxx Xxxxxx
Title: CEO/Compliance
Department
|
INVESTOR:
DUTCHESS
PRIVATE EQUITIES FUND, LTD.
By:
/s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
A
Director
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