EXHIBIT 10.6
AENEID CORPORATION
Series D Preferred Stock
PLACEMENT AGENCY AGREEMENT
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October 18, 0000
XXXXXXXXXX XXXXXXXXX XXXXXXXX INC.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies/Gentlemen:
Aeneid Corporation, a California corporation (the "Company"), proposes to
issue and sell shares of the Company's Series D Preferred Stock, no par value
per share (the "Shares"), to certain investors (collectively, the "Investors")
in a private placement (the "Offering"). The Shares are more fully described in
the Private Placement Memorandum dated October 15, 1999, including all exhibits
and supplements thereto (the "Placement Memorandum"). The Company hereby
confirms as follows its agreements with you.
1. Agreement to Act as Placement Agent. On the basis of the
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representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions of this Agreement and the engagement
letter, dated July 30, 1999 (including the indemnification letter attached
thereto, the "Engagement Letter") between the Company and BancBoston Xxxxxxxxx
Xxxxxxxx Inc. (the "Placement Agent"), the Placement Agent shall be the
Company's exclusive placement agent, on a reasonable efforts basis, in
connection with the issuance and sale by the Company of the Shares to the
Investors. As compensation for services rendered and provided that the Shares
are sold to Investors pursuant to Purchase Agreements (the "Purchase
Agreements") as described in the Placement Memorandum, on the Closing Date (as
defined below), the Company shall pay to the Placement Agent the fees in
connection with the Offering as set forth in the Engagement Letter.
2. Delivery and Payment. The completion of the purchase and sale of the
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Shares shall take place on one or more occasions (each, a "Closing") and shall
occur at such places and such times (each, a "Closing Date") as specified by the
Company and the Placement Agent, and of which the Investors will be notified in
advance by the Placement Agent. At each Closing, the Company shall deliver to
each Investor one or more certificates representing the number of Shares set
forth in the Investor's Purchase Agreement, each such certificate to be
registered in the name of the Investor or, if so indicated, in the name of a
nominee designated by the Investor.
The Company's obligation to issue the Shares to the Investors shall be
subject to the following conditions, any one or more of which may be waived by
the Company: (a) receipt by the Company of a certified or official bank check
or wire transfer of funds in the full amount of the purchase price for the
Shares being purchased; (b) completion of the purchases and sales with other
Investors; and (c) the accuracy of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the Investors to be
fulfilled prior to the Closing.
The Investors' obligations to close the transaction shall be subject to
satisfaction of all of the conditions set forth in Section 6 of this Agreement,
which may be waived by the Investor. The Investors' obligations are expressly
not conditioned on the purchase by any or all of the other Investors of the
Shares that they have agreed to purchase from the Company.
3. Representations, Warranties and Agreements of the Company. The
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Company represents and warrants to and agrees with the Placement Agent that
(unless otherwise specified below, the following representations and warranties
are made as of the date hereof):
(a) The information contained in the Placement Memorandum, as
amended or supplemented, taken together with and as modified or supplemented by
the Schedule of Exceptions to the Purchase Agreements as amended or supplemented
(the "Schedule of Exceptions"), as of the date of the Placement Memorandum did
not contain, and as of the each Closing Date will not contain, an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of California with
full power and authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Placement Memorandum,
and is duly qualified to transact business in each other jurisdiction in which
the conduct of its business or its ownership or leasing of property requires
such qualification and in which the failure to be so qualified would have a
material adverse effect on the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect"). No proceeding has been
instituted in any such jurisdiction with respect to the Company to revoke, limit
or curtail, or that seeks to revoke, limit or curtail, such power and authority
or qualification.
(c) As of the date hereof, the Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
Aeneid Merger Sub, Inc. (the "Subsidiary"). The Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with full power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its business as described in the Placement Memorandum, and is duly qualified to
transact business in each other jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect. No
proceeding has been instituted in any such jurisdiction with respect to the
Subsidiary to revoke, limit or curtail, or that seeks to revoke, limit or
curtail, such power and authority or qualification. All the outstanding shares
of capital stock of, or other form of ownership interest in, the Subsidiary have
been duly authorized and issued and are fully paid and non-assessable and,
except as set forth in the Placement Memorandum, are owned directly or
indirectly by the Company
2.
free and clear of all liens, encumbrances, security interests or claims. There
are no outstanding options, warrants or other rights calling for the issuance
of, and, except as described in the Placement Memorandum, there are no
commitments or arrangements to issue, any shares of capital stock of the
Subsidiary or any security convertible or exchangeable or exercisable for
capital stock of the Subsidiary, except as disclosed in the Schedule of
Exceptions.
(d) The Company has full legal right, power and authority to enter
into this Agreement, the Engagement Letter and the Purchase Agreements
(collectively, the "Agreements") and perform the transactions contemplated
hereby and thereby. This Agreement and the Engagement Letter have been, and the
Purchase Agreements will be, duly authorized, executed and delivered by the
Company. Each of the Agreements is, or will be, as the case may be, a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder or thereunder may be limited by
applicable law and except as the enforcement hereof or thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(e) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Agreements does not, or
will not, as the case may be, contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or its subsidiaries, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of
or qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Agreements, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(f) As of the date of the Placement Memorandum, the Company has an
authorized, issued and outstanding capitalization as set forth in the Placement
Memorandum under the caption "Capitalization" and that conformed to the
description thereof contained elsewhere in the Placement Memorandum. The Shares
to be sold pursuant to the Purchase Agreements conform in all material respects
to the description in the Placement Memorandum and have been duly and validly
authorized, and when issued and paid for in accordance with the terms of the
Purchase Agreements, will be duly and validly issued, fully paid and non-
assessable. Except as disclosed in the Placement Memorandum or the Schedule of
Exceptions, no preemptive right, right of first refusal granted by the Company
or other similar right exists with respect to the Shares or the issuance and
sale thereof. As of the date of the Placement Memorandum, the outstanding
shares of capital stock of the Company conformed in all material respects to the
description in the Placement Memorandum and have been duly and validly
authorized and issued and are fully paid and non-assessable, have been issued
and sold in compliance with applicable Federal and state securities laws and
were not issued in violation of any preemptive rights, rights of first refusal
granted by the Company or other similar rights. Except as described in the
Placement Memorandum or the Schedule of Exceptions, there are no outstanding
options, warrants or other rights calling for the issuance of, and there are no
commitments or arrangements to issue, any shares of capital stock of the Company
or any security convertible or exchangeable or exercisable for capital stock of
the Company. Except as disclosed in the Placement Memorandum or the Schedule of
Exceptions, there are no shareholders agreements, voting agreements or other
similar agreements with
3.
respect to the capital stock of the Company to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company's
shareholders.
(g) There is no material legal or governmental proceeding pending
or, to the knowledge of the Company, threatened or contemplated to which the
Company or the Subsidiary is or may be a party or of which the business or
property of the Company or the Subsidiary is or may be subject that is not
disclosed in the Placement Memorandum.
(h) Neither the Company nor its Subsidiary is in violation of its
charter, bylaws, or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or its
Subsidiary, which violation, individually or in the aggregate, could have a
Material Adverse Effect, or is in default in any material respect in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness in any indenture,
mortgage, deed of trust or any other agreement or instrument to which the
Company or its Subsidiary is a party or by which the Company or its Subsidiary
is bound or by which the properties of the Company or its Subsidiary are bound
or affected, and there exists no condition which, with the passage of time or
otherwise, would constitute a material default under any such document or
instrument or result in the imposition of any material penalty or the
acceleration of any material indebtedness.
(i) Each of the Company and its Subsidiary owns or possesses
sufficient rights to use all material patents, patent rights, trademarks,
copyrights, licenses, inventions, trade secrets, trade names and know-how
(collectively, "Intellectual Property") described or referred to in the
Placement Memorandum as owned or used by it or that are necessary for the
conduct of its business as now conducted or (to the Company's knowledge based on
the current stage of development of the Company's products and subject to the
matters discussed under "Risk Factors" in the Placement Memorandum) as proposed
to be conducted as described in the Placement Memorandum; neither the Company
nor its Subsidiary has received any notice of, or has any knowledge of, any
infringement of or conflict with asserted rights of the Company or its
Subsidiary by others with respect to any Intellectual Property, except as
described in the Placement Memorandum; neither the Company nor its Subsidiary
has received any notice of, or has any knowledge of, any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect; to the knowledge of the Company, none of the
patents owned or licensed by the Company or its Subsidiary are unenforceable or
invalid. Each of the Company and its Subsidiary, as the case may be, has duly
and properly filed or caused to be filed with the United States Patent and
Trademark Office (the "PTO") and applicable foreign and international patent
authorities all patent applications described or referred to in the Placement
Memorandum, and believes it has complied with the PTO's duty of candor and
disclosure for each of the United States patent and patent applications
described or referred to in the Placement Memorandum; the Company is unaware of
any facts which would preclude the grant of a patent from each of the patent
applications described or referred to in the Placement Memorandum; the Company
has no knowledge of any facts which would preclude it or its Subsidiary, as the
case may be, from having clear title to their respective patent applications
referenced in the Placement Memorandum; and neither the Company nor any of its
Subsidiary has terminated or breached or is otherwise in violation of any
agreement covering its Intellectual Property rights. The Company is not aware of
the granting of any patents to third parties or the filing of patent
applications by
4.
third parties or any other rights of third parties to any of the Intellectual
Property of the Company or its Subsidiary.
(j) PricewaterhouseCoopers LLP, who have certified the audited
financial statements and schedules included in the Placement Memorandum, are
independent public accountants.
(k) The consolidated financial statements of the Company and the
related notes contained in the Placement Memorandum present fairly, in
accordance with generally accepted accounting principles, the financial position
of the Company as of the dates indicated, and the results of its operations and
cash flows for the periods therein specified. Such financial statements
(including the related notes) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods therein specified, except as disclosed in the Placement Memorandum.
(l) Except as disclosed in the Placement Memorandum or the
Disclosure Schedule, since the date of the latest audited financial statements
included in the Placement Memorandum, there has not been (i) any material
adverse change in the financial condition or earnings of the Company considered
as one enterprise, (ii) any material adverse event affecting the Company, (iii)
any obligation, direct or contingent, that is material to the Company considered
as one enterprise, incurred by the Company, except obligations incurred in the
ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or (v) any loss or
damage (whether or not insured) to the physical property of the Company which
has been sustained which has resulted in a Material Adverse Effect.
(m) Except as set forth in the Placement Memorandum, the agreements
to which the Company is a party and which are described in the Placement
Memorandum are valid agreements, enforceable by the Company and its Subsidiary
(as applicable) except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles and, to the best of the Company's knowledge, the other contracting
party or parties thereto are not in material breach or material default under
any of such agreements.
(n) The Company and its Subsidiary have good and marketable title to
all real property and good title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are
described in the Placement Memorandum or such as do not materially affect the
value of such property or do not materially interfere with the use made and
proposed to be made of such property by the Company and its Subsidiary. Any real
property, buildings or personal property held under lease by the Company and its
Subsidiary and all rights of use of real property, buildings or personal
property held under contract by the Company and its Subsidiary are held by them
under valid, subsisting and enforceable leases or contracts, as the case may be,
in each case, except as described or contemplated in the Placement Memorandum or
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property by the Company and its Subsidiary.
(o) The Company and its Subsidiary have timely filed all necessary
federal, state and foreign income and franchise tax returns and have paid all
taxes shown thereon as due, and there is no
5.
tax deficiency that has been or, to the best of the Company's knowledge, might
be asserted against the Company or its Subsidiary that has resulted, or might
reasonably be expected to result, in a Material Adverse Effect; and all tax
liabilities are adequately provided for on the books of the Company.
(p) The Company and its Subsidiary maintain insurance with insurers
of recognized financial responsibility of the types and in the amounts generally
deemed adequate for their respective businesses and consistent with insurance
coverage maintained by similar companies in similar businesses, including, but
not limited to, insurance covering real and personal property owned or leased by
the Company or its Subsidiary, against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect; neither the Company nor the Subsidiary
has been refused any insurance coverage sought or applied for; and neither the
Company nor the Subsidiary has reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
(q) To the best of the Company's knowledge, no labor disturbance by
the employees of the Company or its Subsidiary exists or is imminent; and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, licensors, collaborators or
subcontractors that might reasonably be expected to result in a Material Adverse
Effect. No collective bargaining agreement exists with any of the Company's
employees and, to the best of the Company's knowledge, no such agreement is
imminent.
(r) Except as described in the Placement Memorandum and subject to
the matters described under "Risk Factors" in the Placement Memorandum, (i) the
Company and its Subsidiary have operated and currently operate their businesses
in conformity with all applicable laws, rules and regulations of each
jurisdiction in which they are conducting business, except where the failure to
be so in compliance would not have a Material Adverse Effect, (ii) the Company
and its Subsidiary have all licenses, certificates, authorizations, approvals,
permits, franchises, orders and consents from all state, federal and other
governmental or regulatory authorities which are necessary to the current
conduct of their businesses, except where the failure to be so in compliance
would not have a Material Adverse Effect, (iii) all of such licenses,
certificates, authorizations, approvals, permits, franchises, orders and
consents are valid and in full force and effect, (iv) the Company and its
Subsidiary have fulfilled and performed, and will fulfill and perform, all of
their obligations with respect to, and are operating in compliance with, all
such licenses, certificates, authorizations, approvals, permits, franchises,
orders and consents and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or result in any
impairment of the rights of the holder thereof, except to the extent that any
such revocation, termination or impairment would not have a Material Adverse
Effect and (v) no such licenses, certificates, authorizations, approvals,
permits, franchises, orders or consents contain any restrictions that have or
could reasonably be expected to have a Material Adverse Effect.
(s) The Company has been advised concerning the Investment Company
Act of 1940, as amended (the "1940 Act"), and the rules and regulations
thereunder. The Company is not, and will not be as a result of consummation of
the Offering, an "investment company" under the 1940 Act.
(t) Neither the Company nor its Subsidiary, nor, to the knowledge of
the Company or the Subsidiary, any agent or other person acting on behalf of the
Company or its Subsidiary, have,
6.
directly or indirectly, (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; (iii) failed to disclose fully any contribution
made by the Company or such Subsidiary or made by any person acting on its
behalf and of which the Company or such Subsidiary is aware in violation of law;
(iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (v) made any unlawful bribe, rebate,
payoff, influence, kick-back or other unlawful payment.
(u) The operations of the Company and its Subsidiary with respect to
any real property currently leased, owned or by any means controlled by the
Company or its Subsidiary (the "Real Property") are in compliance with all
federal, state, and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment; the Company and its
Subsidiary maintain all licenses, permits and authorizations necessary to
operate under all such laws applicable to the Company and its Subsidiary; and
there is no pending or, to the best knowledge of the Company, threatened, claim,
litigation or any administrative agency proceeding, nor has the Company or the
Subsidiary received any written or oral notice from any governmental entity or
third party, that: (i) alleges a violation of any such laws by the Company or
its Subsidiary; (ii) alleges that the Company or its Subsidiary is a liable
party under the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended, 42 U.S.C. (S) 9601 et seq. ("CERCLA"), or any state
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superfund law; (iii) alleges possible contamination of the environment by the
Company or its Subsidiary; or (iv) alleges possible contamination of the Real
Property. No property which is owned, leased or occupied by the Company or its
Subsidiary has been designated as a Superfund site pursuant to CERCLA or
otherwise designated as a contaminated site under applicable state or local
law.
(v) The Company and its Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(w) There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business and other than in
connection with purchases of the Company's stock) or guarantees of indebtedness
by the Company to or for the benefit of any of the officers or directors of the
Company or any of the members of the families of any of them, except as
disclosed in the Placement Memorandum or the Disclosure Schedule.
(y) The Company has complied with all provisions of Florida Statutes
Section 517.075, and the regulations thereunder, relating to doing business with
the Government of Cuba or with any person or affiliate located in Cuba.
4. Further Agreements of the Company. The Company agrees with the
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Placement Agent that:
7.
(a) The Company will use its best efforts to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as the
Placement Agent and the Investors may designate and to continue such
qualifications in effect for so long as may be required for purposes of the
distribution of the Shares, except that the Company shall not be required in
connection therewith or as a condition thereof to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction in which it is not otherwise required to be so qualified or to so
execute a general consent to service of process. In each jurisdiction in which
the Shares shall have been qualified as above provided, the Company will make
and file such statements and reports in each year as are or may be reasonably
required by the laws of such jurisdiction.
(b) The Company will furnish to the Placement Agent, as soon as available,
copies of the Placement Memorandum in such quantities as the Placement Agent may
from time to time reasonably request.
(c) The Company shall comply in all respects with its obligations pursuant
to the Purchase Agreements with the Investors.
(d) The Company will apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the Placement
Memorandum.
(e) The Company shall use its best efforts to do and perform all things
required or necessary to be done and performed under the Agreements by the
Company prior to each Closing Date and to satisfy all conditions precedent to
the delivery of the Shares.
(f) Neither the Company nor any of its affiliates will take any action in
connection with the Offering which would cause them not to comply with Rule 506
of Regulation D, and the Company will make a timely filing of Form D pursuant to
the requirements of Rule 503 of Regulation D. The Company shall exercise
reasonable care to assure that the Investors are not underwriters within the
meaning of Section 2(11) of the Act, and shall take all actions required by Rule
502(d) of Regulation D. The Company, in its sole discretion, will not accept a
subscription from an Investor if the Company has reason to believe that material
information supplied by or material representations or warranties made by, such
Investor are not fully accurate. The Company shall reasonably believe,
immediately prior to making any sale, that each Investor (i) is an accredited
investor, and (ii) either alone or with his purchaser representative, has such
knowledge and experience in financial and business matters that he is capable of
evaluating the merits and risks of a purchase of the Shares and otherwise meets
the suitability standards set forth in the Placement Memorandum. The Company
shall reasonably believe that any purchaser representative satisfies all of the
conditions of rule 501(h) of Regulation D.
(g) The Company shall keep the Placement Memorandum confidential and shall
not distribute it or any other materials related to the transaction contemplated
hereby, or otherwise advertise to or solicit purchasers of Shares, without the
consent of the Placement Agent.
(h) During a period of five (5) years after the final Closing, the Company
will furnish to the Investors and the Placement Agent, as soon as they are
available, (i) quarterly (or as otherwise provided to the Company's other
shareholders) updates on the Company's business, (ii) quarterly (or as otherwise
provided to the Company's other shareholders) balance sheets, income statements,
and
8.
statements of cash flows and (iii) copies of all filings, reports and other
information (financial or other) provided to the Company's stockholders in
general.
5. Representations of the Placement Agent.
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(a) The Placement Agent is a member in good standing of the NASD
and it has, and at all times while taking any actions constituting an offer or
sale of the Shares had, all governmental licenses (including both federal and
state broker dealer licenses) required to act as placement agent for the shares.
(b) The Placement Agent has complied with all applicable Federal
and state laws (including, without limitation, Regulation D) and applicable
rules of the NASD in connection with its activities as placement agent for the
Shares.
6. Conditions to Placement Agent's Obligations. The obligations of the
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Placement Agent hereunder shall be subject to the accuracy, as of the date
hereof, of the representations and warranties of the Company herein, to the
performance by the Company of its obligations hereunder and to the following
additional conditions (any of which may be waived by the Placement Agent):
(a) On or prior to each Closing Date, the Placement Agent shall
receive, dated as of such date, either a written legal opinion from Xxxxxx &
Xxxxxxx, counsel to the Company, addressed to the Placement Agent, in form
acceptable to counsel for the Placement Agent or a reliance letter from Xxxxxx &
Xxxxxxx addressed to the Placement Agent, stating that the Placement Agent may
rely on the opinion of Xxxxxx & Xxxxxxx to the Investors as if addressed to the
Placement Agent.
(b) On or prior to each Closing Date, the Placement Agent shall
receive a certificate of the Company, dated as of such date, signed by the Chief
Executive Officer and Chief Financial Officer of the Company, in substantially
the form attached hereto as Exhibit A.
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7. Expenses. The Company shall reimburse the Placement Agent for its
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reasonable out-of-pocket expenses incurred in connection with the Offering,
including without limitation the fees and expenses of legal counsel and travel
expenses, as set forth in the Engagement Letter.
8. Indemnification. The Company agrees to indemnify and hold harmless
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the Placement Agent, its affiliates, and each of their respective affiliates,
directors, officers, agents, advisors, consultants, employees and controlling
persons (as defined in the Securities Act) (each, an "Indemnified Person"), in
accordance with the terms of the Engagement Letter, such indemnification to
include (notwithstanding any provision to the contrary contained in the
Engagement Letter) indemnification from an against any and all losses, claims,
damages, liabilities and expenses whatsoever relating to, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Placement Memorandum (or any other material used by the Company
or authorized by the Company for use in connection with the Offering), or
relating to or arising out of or based upon the omission or alleged omission to
state in any such document a material fact required to be stated therein or
necessary to make the statements therein not misleading (other than statements
or omission made in reliance upon and in conformity with information furnished
by the Placement Agent in writing to the Company expressly for use therein).
9.
9. Survival of Certain Provisions. All representations, warranties,
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covenants and agreements of the Company and the Placement Agent herein or in
certificates delivered pursuant hereto, and the indemnity agreements contained
in Section 8 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Placement Agent or
any controlling person within the meaning of the Securities Act or the Exchange
Act, or by or on behalf of the Company or any of its officers, directors or
controlling persons within the meaning of the Securities Act or the Exchange
Act, and shall survive the delivery of the Shares to the Investors or
termination of this Agreement.
10. Termination. This Agreement may be terminated by either the Company
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or the Placement Agent in accordance with the terms of the Engagement Letter.
11. Notices. All notices or communications hereunder will be in writing
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and will be mailed, delivered, telegraphed (and confirmed by letter) or
telecopied (and confirmed by letter), as follows: If to the Company, to Aeneid
Corporation, 000 0/xx/ Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx Xxxxxxxxx, facsimile number (000) 000-0000; with a copy
(which shall not constitute notice) to Xxxxxx & Xxxxxxx, 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, facsimile number
(000) 000-0000; if to the Placement Agent, to BancBoston Xxxxxxxxx Xxxxxxxx
Inc., 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx
Xxxxxxxxx, facsimile number (000) 000-0000.
12. Parties. This Agreement shall inure to the benefit of and be
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binding upon the Placement Agent, the Company, and their respective executors,
administrators and successors. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person or corporation, other than
these parties hereto and their respective executors, administrators and
successors, and the parties subject to indemnification under Section 8 hereof,
any legal or equitable right, remedy or claim in respect of this Agreement or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective executors, administrators and
successors and said parties subject to indemnification, and for the benefit of
no other person or corporation. An Investor in the Offering shall not be deemed
to be a successor to the Company.
13. Entire Agreement. This Agreement and the Engagement Letter embody
----------------
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
14. Governing Law. This Agreement shall be governed by, and construed
-------------
in accordance with, the internal laws of the State of New York without giving
effect to the principles of conflicts of law.
15. Counterparts. This Agreement may be signed in several counterparts,
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each of which will constitute an original.
16. Severability. If any term or provision of this Agreement is
------------
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of the agreements
contained herein is not effected in any manner adverse to any party.
10.
17. Amendment. The Agreement may not be amended except in writing
---------
signed by each party to be bound thereby.
11.
If the foregoing correctly sets forth the understanding between the Company
and the Placement Agent, please so indicate in the space provided below for that
purpose, whereupon this Agreement shall constitute a binding agreement between
the Company and the Placement Agent.
Very truly yours,
AENEID CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: President & CEO
Accepted as of the date first
above written:
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
By: /s/ Xxxxx Xxxxxxxxx
________________________________
Authorized Signatory
EXHIBIT A
Form of Officers' Certificate
Each of Xxxxxxx Xxxxxxx, President and Chief Executive Officer of Aeneid
Corporation (the "Company"), and Xxxx Xxxxx, Treasurer and Assistant Secretary
of the Company, pursuant to Section 6(b) of the Placement Agency Agreement,
dated October 18, 1999 (the "Placement Agency Agreement"), between the Company
and BancBoston Xxxxxxxxx Xxxxxxxx Inc. hereby certify that:
(i) Unless a different date is specified therein, the representations and
warranties of the Company in the Placement Agency Agreement are true
and correct as of the date hereof as though made on and as of this
date;
(ii) The Company has performed all obligations and satisfied all
conditions to be performed and satisfied by it pursuant to the
Agreements (as defined in the Placement Agency Agreement) at or prior
to the date hereof; and
(iii) He has examined the Placement Memorandum and the Schedule of
Exceptions to the Purchase Agreement dated October 18, 1999, between
the Company and the investors listed on Exhibit A thereto, as amended
as of the date hereof (the "Schedule of Exceptions") and as of the
date hereof, the Placement Memorandum, taken together with and as
modified or supplemented by the Schedule of Exceptions to the
Purchase Agreement, as amended or supplemented, does not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
EXHIBIT A
Form of Officers' Certificate
Each of Xxxxxxx Xxxxxxx, President and Chief Executive Officer of Aeneid
Corporation (the "Company"), and Xxxx Xxxxx, Treasurer and Assistant Secretary
of the Company, pursuant to Section 6(b) of the Placement Agency Agreement,
dated October 18, 1999 (the "Placement Agency Agreement"), between the Company
and BancBoston Xxxxxxxxx Xxxxxxxx Inc. hereby certify that:
(i) Unless a different date is specified therein, the representations and
warranties of the Company in the Placement Agency Agreement are true
and correct as of the date hereof as though made on and as of this
date; except that the representation set forth in Section 3(c) is
modified as follows:
(a) As of the date hereof, the Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
InGenius Technologies, Inc. (the "Subsidiary"). The Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with full power and authority
(corporate and other) to own, lease and operate its properties and to conduct
its business as described in the Placement Memorandum, and is duly qualified to
transact business in each other jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification and
in which the failure to be so qualified would have a Material Adverse Effect. No
proceeding has been instituted in any such jurisdiction with respect to the
Subsidiary to revoke, limit or curtail, or that seeks to revoke, limit or
curtail, such power and authority or qualification. All the outstanding shares
of capital stock of, or other form of ownership interest in, the Subsidiary have
been duly authorized and issued and are fully paid and non-assessable and,
except as set forth in the Placement Memorandum, are owned directly or
indirectly by the Company free and clear of all liens, encumbrances, security
interests or claims. There are no outstanding options, warrants or other rights
calling for the issuance of, and, except as described in the Placement
Memorandum, there are no commitments or arrangements to issue, any shares of
capital stock of the Subsidiary or any security convertible or exchangeable or
exercisable for capital stock of the Subsidiary, except as disclosed in the
Schedule of Exceptions.
(ii) The Company has performed all obligations and satisfied all
conditions to be performed and satisfied by it pursuant to the
Agreements (as defined in the Placement Agency Agreement) at or
prior to the date hereof; and
(iii) He has examined the Placement Memorandum and the Schedule of
Exceptions to the Purchase Agreement dated October 18, 1999, between
the Company and the investors listed on Exhibit A thereto, as
amended as of the date hereof (the "Schedule of Exceptions") and as
of the date hereof, the Placement Memorandum, taken together with
and as modified or supplemented by the Schedule of Exceptions to the
Purchase Agreement, as amended or supplemented, does not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
IN WITNESS WHEREOF, each of Xxxxxxx Xxxxxxx and Xxxx Xxxxx has signed his
name on behalf of the Company this 18th day of October, 1999.
______________________________________
Xxxxxxx Xxxxxxx
President and Chief Executive Officer
______________________________________
Xxxx Xxxxx
Treasurer
