Exhibit 1.1
1,000,000 Shares Maximum
850,000 Shares Minimum
Common Stock
XXXXXXX HOLDINGS, INC.
The World Trade Center - Baltimore
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
PLACEMENT AGENCY AGREEMENT
[ ], 1998
The Xxxxxxx Co.
The World Trade Center - Baltimore
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxxx Holdings, Inc. a Maryland corporation (the "Corporation"),
proposes to cause to be issued, and sold (the Offering") through The Xxxxxxx Co.
(the "Placement Agent") on a "best efforts" basis, a minimum of 850,000 (the
"Minimum") and a maximum of 1,000,000 (the "Maximum") shares (the "Shares") of
common stock, $0.001 par value per share (the "Common Stock") at a public
offering price of $[6] per share (the "Offering Price").
SECTION 1. APPOINTMENT
The Corporation hereby appoints the Placement Agent, and the Placement
Agent hereby agrees, to act as underwriter of the Shares for the period and on
the terms set forth in this Agreement. In connection therewith, the Corporation
has delivered to the Placement Agent copies of its Articles of Incorporation and
Bylaws, the Corporation's Registration Statement and all amendments thereto
filed pursuant to the Securities Act of 1933, as amended (the "Securities Act")
(the "Registration Statement"), and the Corporation's current prospectus (as
currently in effect and as amended or supplemented, the "Prospectus") and shall
promptly furnish the Placement Agent with all amendments of or supplements to
the foregoing.
SECTION 2. DISTRIBUTION SERVICES
Subject to the direction and control of the Corporation's Board of
Directors (the "Board"), the Placement Agent shall serve as underwriter of the
Shares.
(a) As agent of and underwriter for the Corporation, the Placement Agent
shall offer, and solicit offers to subscribe to, the Shares as shall then be
effectively regis-
tered under the Securities Act and applicable state securities laws. All
subscriptions for the Shares obtained by the Placement Agent shall be directed
to the Corporation for acceptance and shall not be binding on the Corporation
until accepted by it. The Placement Agent shall have no authority to make
binding subscriptions on behalf of the Corporation. The Placement Agent's rights
hereunder shall not apply to shares of Common Stock issued in connection with
the reinvestment by the Corporation's stockholders of dividends or other
distributions or any other offering by the Corporation of securities to its
stockholders.
(b) The Placement Agent shall use its best efforts to obtain subscriptions
to the Shares upon the terms and conditions contained herein and in the
Prospectus, including the Offering Price. The Corporation shall furnish to the
Placement Agent from time to time, for use in connection with the Offering, such
information with respect to the Corporation and the Shares as the Placement
Agent may reasonably request. The Corporation shall supply the Placement Agent
with such copies of the Prospectus as the Placement Agent may request. The
Placement Agent may use its employees, agents and other persons who need not be
its employees, at its cost and expense, to assist it in carrying out its
obligations hereunder, but no such employee, agent or other person shall be
deemed to be an agent of the Corporation or have any rights under this
Agreement.
(c) The Corporation reserves the right to suspend the Offering at any
time, in the absolute discretion of the Board of Directors, and upon notice of
such suspension the Placement Agent shall cease to offer the Shares.
(d) The Corporation and the Placement Agent will cooperate with each other
in taking such action as may be necessary to qualify the Shares for sale under
the securities laws of such states as the Corporation may designate. The
Corporation shall pay all fees and expenses of registering the Shares under the
Securities Act and of registering or qualifying the Shares and the Corporation's
qualification under applicable state securities laws. The Placement Agent shall
pay all expenses relating to its broker-dealer qualification.
(e) The Corporation shall advise the Placement Agent immediately: (i) of
any request by the Commission for amendments to the Corporation's Registration
Statement or Prospectus or for additional information; (ii) in the event of the
issuance by the Commission or any stop order suspending the effectiveness of the
Corporation's Registration Statement or Prospectus or the initiation of any
proceedings for that purpose; (iii) of the happening of any material event which
makes untrue any statement made in the Corporation's Registration Statement or
Prospectus or which requires the making of a change in either thereof in order
to make the statements therein not misleading; and (iv) of all action of the
Commission with respect to any amendments to the Corporation's Registration
Statement or Prospectus which may from time to time be filed with the Commission
under the Securities Act.
SECTION 3. EXPENSES
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The Corporation will pay all fees, costs and expenses incident to the
performance by the Corporation of its obligations hereunder, including: (a) the
preparation, printing, filing and distribution of the Registration Statement
(including the exhibits thereto), all amendments and supplements thereto and the
Prospectus; (b) the preparation, printing, and issuance of the Shares including
any stamp taxes and transfer agent and registrar fees payable in connection with
the original issuance of the Shares; (c) the registrations or qualifications
referred to in Section (2) hereof including fees and disbursements of counsel
relating to such registrations or qualifications; (d) the fees and expenses of
the Corporation's accountants and the fees and expenses of counsel for the
Corporation; (e) the expenses of delivery to the Placement Agent of copies of
the Prospectus, as may be requested for use in connection with the Offering; (f)
any filings required to be made by the Placement Agent with the National
Association of Securities Dealers, Inc.; (g) the fees and expenses incurred with
respect to the quotation of the Shares on the Nasdaq SmallCap Market. In the
event the Offering is terminated pursuant to Section (5) hereof, the Placement
Agent will be entitled to reimbursement only for its actual accountable
out-of-pocket expenses.
SECTION 4. TERMS OF THE OFFERING
The Offering shall commence upon the effectiveness of the Registration
Statement (the "Effective Date"). All subscription proceeds shall be
immediately deposited into an escrow account established at UMB Bank, N.A. The
termination date of the Offering is on the earlier to occur of: the date
selected by the Corporation; the date of the sale of the Maximum; or the date
that is 180 days after the Effective Date, unless extended by the Corporation
for one or more additional periods not to exceed an additional 30 days in the
aggregate, in which case, on that date which such additional period expires (the
"Termination Date"). If the Minimum is not sold by 5:00 p.m. Baltimore Time on
the Termination Date, the Offering shall terminate and all subscription proceeds
shall be returned to prospective investors, without discount and without
interest.
On such date after the sale of the Minimum and on or before the Termination
Date as shall be determined by the Corporation and subject to the terms and
conditions of this Agreement, a closing shall occur pursuant to which the Shares
shall be issued to subscribers against release of the Offering proceeds held in
escrow with respect to such subscribers' subscriptions ("Initial Closing").
After the Initial Closing, subscription proceeds will be held by the Corporation
pending a subsequent closing. Subject to the terms and conditions of this
Agreement, subsequent closings ("Subsequent Closings") shall be held thereafter
with respect to additional sales of the Shares on a monthly basis or on such a
more frequent basis as the Corporation and Placement Agent shall agree until the
earlier of the Termination Date or termination of the Offering as provided
herein. Initial Closing or a Subsequent Closing is hereinafter referred to
sometimes as a Closing.
The Offering Price will be $[] per Share. The minimum subscription will be
for 100 Shares. The Placement Agent, at its option, may be paid a selling
concession of up to seven percent (7%) of the subscription proceeds ($.[ ] per
share) from all sales of the
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Shares all, or any portion, of which the Placement Agent may reallow to other
selling agents or any qualified independent underwriter. The Corporation shall
have the right to accept or reject in whole or in part subscriptions for the
Shares.
SECTION 5. TERMINATION
This Agreement may be terminated at any time, without the payment of any
penalty, (i) by the Board of Directors of the Corporation, on 10 days' written
notice to the Placement Agent or (ii) by the Placement Agent on 10 days' written
notice to the Corporation. This Agreement shall automatically terminate in the
event of its assignment.
SECTION 6. ACTIVITIES OF PLACEMENT AGENT
Except to the extent necessary to perform its obligations under this
Agreement, nothing herein shall be deemed to limit or restrict the Placement
Agent's right, or the right of any of its officers, directors or employees
(whether or not they are a director, officer, employee or other affiliated
person of the Corporation) to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
company, corporation, firm, individual or association.
SECTION 7. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(c) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(d) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(e) This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of Maryland without reference to
principles of conflict of law.
(f) This Agreement has been and is made solely for the benefit of the
Placement Agent, the Corporation and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein,
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and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares merely because of
such purchase.
(g) This Agreement embodies the entire agreement between the Corporation
and the Placement Agent relating to the subject matter hereof and supersedes all
prior agreements, representations and understandings, if any, relating to the
subject matter hereof.
(h) Please confirm that the foregoing correctly sets forth the agreement
between the Corporation and the Placement Agent.
Very truly yours,
XXXXXXX HOLDINGS, INC.
By:__________________________
Xxxxxx X. Xxxxxxx, Xx.
President
Accepted,
THE XXXXXXX CO.
By:__________________________
Xxxxxx X. Xxxxxxx, Xx.
President
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