Palladium Capital Advisors, LLC New York, New York 10169 Tel (646) 485-7297 Fax (646) 390-6328 Email jp@palladiumcapital.com
Palladium
Capital Advisors, LLC
000 Xxxx
Xxxxxx, Xxxxx 000
Xxx Xxxx,
Xxx Xxxx 00000
Tel (000)
000-0000 Fax (000) 000-0000
Email
xx@xxxxxxxxxxxxxxxx.xxx
| August 11, 2010 |
Xx. Xxxx
Xxxxxx, CFO
0000
Xxxxxxxx Xxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
Re: Non-exclusive
Placement Agent
Agreement
Dear Xx.
Xxxxxx:
This will
confirm the understanding and agreement (the “Agreement”) between PALLADIUM
CAPITAL ADVISORS, LLC, a Delaware limited liability company (“Palladium”), and
NEW GENERATION BIOFUELS HOLDINGS, INC., a Florida corporation (the “Company”),
as follows:
1. The
Company hereby engages Palladium as placement agent in connection with the sale
of equity or equity-linked securities of the Company (the “Securities”) on a
best efforts basis to a limited number of accredited investors (the “Investors”)
through a private placement or similar unregistered transaction at a price and
upon terms and subject to conditions that are satisfactory to the Company (the
“Transaction”). For purposes hereof, the term “Securities” also includes a
convertible loan or other type of investment convertible into or exchangeable
for or otherwise linked to the equity of the Company.
2. The
appointment and authorization of Palladium under Section 1 of this Agreement
shall commence on the date hereof and shall expire six (6) months after the date
hereof (the “Term”).
3. The
Company acknowledges and agrees that Palladium will be using, and relying upon,
the Company to furnish Palladium with written materials and information,
including but not limited to financial statements, to be provided to potential
Investors (the “Materials”) describing the Company and the Transaction (or
Related Transaction, as defined below) concerning the Company’s business,
operations, assets, liabilities and receivables, and Palladium will be using,
and relying upon, such Materials supplied by the Company, and any other publicly
available information without any independent investigation or verification
thereof or independent appraisal by Palladium of the Company of its business or
assets. Palladium does not assume responsibility for the accuracy or
completeness of the Materials, including but not limited to any disclosure
materials related to the Transaction (or Related Transaction), except for such
information that is provided in writing by Palladium to the Company that is
independently produced by Palladium and not based on Materials provided by the
Company or information available from generally recognized public sources. The
Company shall provide Palladium with access to the Company’s officers,
directors, accountants, counsel and other advisors, and shall keep Palladium
fully informed of any events that might have a material effect on the financial
condition of the Company. The Company represents and warrants to Palladium that
the Materials, will be true, complete and accurate in all material respects and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in light of the circumstances under which such statements are made. If at any
time prior to the completion of a Transaction (or Related Transaction) an event
occurs which would cause the Materials (as
supplemented or amended) to contain an untrue statement of a material fact or to
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, the
Company will notify Palladium immediately of such event.
4. (a) The
Company agrees to pay Palladium, upon the culmination of each Transaction with
Investors (each, a “Closing”), 7%
of the aggregate
consideration raised in the private placement(s) from such Investors introduced by Palladium. All
cash compensation payable hereunder by the Company to Palladium shall be paid by
wire transfer.
5. For
purposes of this Agreement:
(a) “Aggregate
consideration” shall mean the total consideration (stock, cash, assets and all
other property (real or personal, tangible or intangible) plus debt and
liabilities assumed (including, without limitation, loans, indebtedness for
borrowed money, pension liabilities and guarantees), funding, advances, license
fees, royalty fees, joint venture interests or other property, obligations or
services) exchanged or received, or to be exchanged or received, directly or
indirectly by the Company in connection with any Transaction or Related
Transaction.
(b) In
the event consideration is to be paid in whole or in part by installment
payments, the portion of Palladium’s fee relating thereto shall be calculated
and paid when and as such installment payments are made.
6. The
Company shall reimburse Palladium periodically for its reasonable and customary
out-of-pocket and incidental expenses incurred during the term of its engagement
hereunder approved in advance in writing by the Company.
7. The
Company agrees to provide indemnification as set forth in Annex A attached
hereto and made a part hereof.
8. Upon
a Closing, the Company agrees that Palladium has the right to place notices
and/or advertisements in financial and other newspapers and journals (whether in
print or on the internet), and to publicize on its own website and/or marketing
materials, at its own expense, describing its services to the Company
hereunder.
9. The
provisions of Sections 4, 6, and 7 (including, without limitation, the
provisions of indemnification referred to in Section 7) shall survive the
expiration or termination of this Agreement.
2
10. Intentionally
omitted.
11. Nothing
contained in this Agreement shall limit or restrict the right of Palladium or of
any member, employee, agent or representative of Palladium, to be a shareholder,
member, partner, director, officer, employee, agent or representative of, or to
engage in, any other business, whether of a similar nature or not, nor to limit
or restrict the right of Palladium to render services of any kind to any other
corporation, company, firm, individual or association.
12. The
failure or neglect of the parties hereto to insist, in any one or more
instances, upon the strict performance of any of the terms or conditions of this
Agreement, or their waiver of strict performance of any of the terms or
conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
13. Any
notices hereunder shall be in writing, and shall be sent to the Company and to
Palladium at their respective addresses set forth above. Any notice shall be
given by registered or certified mail, postage prepaid, and shall be deemed to
have been given when deposited in the United States mail. Either party may
designate any other address to which notice shall be given by giving written
notice to the other party of such change of address in the manner herein
provided.
14. This
Agreement shall inure to the benefit of and be binding upon the respective,
Affiliates, successors and assigns of the parties hereto. The term “Affiliates”
shall mean, with respect to any person or entity, any other person or entity
who, directly or indirectly, through one or more intermediaries controls, is
controlled by, or is under common control with such person or entity and any
spouse, parent or issue of any such person; “control” means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of a person or entity whether through ownership of voting securities, by
contract or otherwise.
15. This
Agreement has been made in the State of New York and shall be construed and
governed in accordance with the laws thereof without giving effect to principles
governing conflicts of law. The parties irrevocably agree that any legal action
or proceeding under, arising out of or in any manner relating to this Agreement
or the Company or any of its affiliates shall be brought exclusively in any
court of competent jurisdiction in the County of New York, State of New York.
Each of the parties, by its execution and delivery of this Agreement, expressly
and irrevocably assents and submits to the jurisdiction of any of such courts in
any such action or proceeding. The parties further irrevocably consent to the
service of any complaint, summons, notice or other process relating to any such
action or proceeding by delivery thereof to such party by hand or by registered
or certified mail in the manner prescribed in Section 13 hereof. The parties
further irrevocably consent that any judgment rendered by such court in the
State of New York may be entered in another court having competent jurisdiction
thereof.
16. This
Agreement contains the entire agreement between the parties, may not be altered
or modified, except in writing and signed by the party to be charged thereby,
and supersedes any and all previous agreements between the parties relating to
the subject matter hereof.
17. Palladium
will not have any rights or obligations in connection with the sale and purchase
of the Securities contemplated by this Agreement except as expressly provided in
this Agreement. In no event will Palladium be obligated to purchase the
Securities for its own account or for the accounts of its customers. Palladium
will have the right, but not the obligation, however, to determine the
allocation of the Securities among its potential Investor purchasers introduced
by Palladium, provided that such allocation is reasonably acceptable to the
Company.
3
18. Palladium
is acting as financial advisor and is not an expert on, and cannot render
opinions regarding, legal, accounting, regulatory or tax matters. The Company
should consult with its other professional advisors concerning these matters
before undertaking any Transaction or Related Transaction. All services, advice
and information and reports provided by Palladium to the Company in connection
with this assignment shall be for the sole benefit of the Company and shall not
be relied upon by any other person. Notwithstanding anything to the contrary
contained herein, it is understood and agreed that there are no third-party
beneficiaries to this Agreement. The obligations of Palladium and the
Company hereunder are solely corporate obligations, and no officer, director,
employee, agent, member, shareholder, counsel, accountant, auditor or other
person shall be subject to any personal liability whatsoever to any person, nor
will any such claim be asserted by or on behalf of Palladium or the Company.
Palladium is a registered broker-dealer in good standing with the SEC under the
securities Act of 1934, as amended, and in all jurisdictions in which the nature
of its activities or the substance of its actions would require such
registration or qualification pursuant to the blue-sky laws or such
jurisdiction. Palladium will comply with all laws, rules and regulations related
to its activities on behalf of the Company pursuant to this Agreement. All
consents, authorizations, and approvals necessary or appropriate for Palladium
to undertake its obligations set forth in this Agreement have been obtained by
Palladium prior to execution of this Agreement and Palladium shall immediately
use its best efforts to secure investors for the Company as set forth
herein.
Palladium
is delighted to accept this engagement and looks forward to working with you on
this assignment. Please confirm that the foregoing correctly sets forth our
understanding by signing the enclosed duplicate of this letter in the space
provided and returning it, whereupon this letter shall constitute a binding
agreement as of the date first above written.
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Very
truly yours,
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| PALLADIUM CAPITAL ADVISORS, LLC | |||
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By:
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| Xxxx Xxxxxxxx, Chief Executive Officer | |||
ACCEPTED
AND AGREED
AS OF THE
DATE FIRST
ABOVE
WRITTEN:
| By: |
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Xx.
Xxxx Xxxxxx, Chief Financial Officer
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[Annex A
follows]
4
Annex A
Indemnification
Provisions
In
connection with the engagement of Palladium by the Company pursuant to the
Agreement, the Company hereby agrees as follows:
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1.
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In
connection with or arising out of or relating to the engagement of
Palladium under the Agreement, or any actions taken or omitted, services
performed or matters contemplated by or in connection with the Agreement,
the Company agrees to reimburse Palladium, its affiliates and their
respective members, officers, employees, agents and controlling persons
(each an “Indemnified Party”) promptly upon demand for actual,
out-of-pocket expenses (including reasonable fees and expenses for legal
counsel) as they are incurred in connection with the investigation of,
preparation for or defense of any pending or threatened claim, or any
litigation, proceeding or other action in respect thereof (collectively, a
“Claim”). The Company also agrees (in connection with the foregoing) to
indemnify and hold harmless each Indemnified Party from and against any
and all out-of-pocket losses, claims, damages and liabilities, joint or
several, to which any Indemnified Party may become subject, including any
amount paid in settlement of any litigation or other action (commenced or
threatened) to which the Company shall have consented in writing;
provided, however, that the Company shall not be liable pursuant to this
paragraph in respect of any loss, claim, damage or liability to the extent
that a court or other agency having competent jurisdiction shall have
determined by final judgment (not subject to further appeal) that such
loss, claim, damage or liability was incurred primarily from the willful
misconduct or gross negligence of such Indemnified Party. The Company also
agrees that no Indemnified Party shall have any liability (whether direct
or indirect, in contract or tort or otherwise) to the Company or its
partners, security holders or creditors related to or arising out of the
engagement of Palladium pursuant to, or the performance by Palladium of
the services contemplated by, this Agreement except to the extent that any
loss, claim, damage or liability is determined in a final judgment (not
subject to further appeal) by a court or other agency having competent
jurisdiction to have resulted primarily from actions taken or omitted to
be taken by Palladium in bad faith or from the willful misconduct or gross
negligence of Palladium.
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2.
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The
Company will assume the defense of any Claim against an Indemnified Party,
provided the Indemnified Parties shall have the right to retain one
counsel of its own choice (reasonably satisfactory to Company) and the
Company shall pay the reasonable fees and expenses of such legal counsel,
and such counsel shall to the fullest extent, consistent with its
professional responsibilities, cooperate with the Company and any legal
counsel designated by the Company.
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3.
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The
Company will not, without the prior written consent of each Indemnified
Party, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be
reasonably sought hereunder (whether or not any Indemnified Person is an
actual or potential party to such Claim), unless such settlement,
compromise or consent includes an unconditional, irrevocable release of
each Indemnified Person against whom such Claim may be brought hereunder
from any and all liability arising out of such Claim. PA agrees that,
without the Company’s prior written consent, it will not settle,
compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification
could be south under the indemnification provisions of this Agreement
(whether or not the Company is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all
liability arising out of such claim, action or
proceeding.
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5
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4.
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In
the event any Indemnified Party is requested or required to appear as a
witness in any action, suit or proceeding brought by or on behalf of or
against the Company or any affiliate or any participant in a Transaction
(or Related Transaction) covered hereby in which such Indemnified Party is
not named as a defendant, the Company agrees to reimburse Palladium and
such Indemnified Party for all reasonable disbursements incurred by them
in connection with such Indemnified Party’s appearing and preparing to
appear as a witness, including, without limitation, the fees and
disbursements of their legal counsel, and to compensate Palladium and such
Indemnified Party in an amount to be mutually agreed
upon.
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5.
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All
amounts due under the Indemnification Provisions of this Annex A shall be
payable within ten (10) days after written notice of such event giving
rise to the indemnification obligations, and if not paid within such
10-day period, such amounts shall bear interest at a rate of 1.5% per
month or at the highest rate permitted under the laws of the State of New
York, whichever rate is lower.
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6.
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These
Indemnification Provisions shall remain in full force and effect in
connection with the transactions contemplated by the Agreement whether or
not consummated, and shall survive the expiration or termination of the
Agreement, and shall be in addition to any liability that the Company
might otherwise have to any Indemnified Party under the Agreement or
otherwise.
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| PALLADIUM CAPITAL | NEW GENERATION BIOFUELS HOLDINGS, INC. | |||||
| By: |
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By: |
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Xxxx
Xxxxxxxx
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Xxxx
Xxxxxx
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Chief
Executive Officer
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Chief
Financial Officer
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