SELECTED DEALER AGREEMENT
July 23, 2004
Sands Brothers International Limited
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: RMS Titanic, Inc.
-----------------
Ladies and Gentlemen:
This Agreement sets forth terms upon which Sands Brothers
International Limited, a registered broker-dealer and a member of the National
Association of Securities Dealers, Inc. (the "Selected Dealer"), shall be
engaged by RMS Titanic, Inc., a Florida corporation (the "Company"), to act as
exclusive Selected Dealer in connection with the private placement (the
"Offering") of "Units", at a price of $60,000 per Unit. Each Unit shall consist
of: (i) such number of shares of common stock, $.0001 par value per share (the
"Common Stock" or "Shares") of the Company, as is determined by dividing $60,000
by 80% of the average closing bid price per share of the Common Stock for each
of the ten trading days prior to each Closing, as reported on the OTC Bulletin
Board ("Common Stock Closing Price"); and (ii) three warrants (each, a "Warrant"
and collectively, the "Warrants") for every ten Shares included in the Units to
purchase Common Stock, exercisable for a period of five years at an exercise
price per share equal to $1.50 per share. The form of Warrant is included as an
annex to the Memorandum (as hereinafter defined). The shares to be issued upon
exercise of the Warrants are hereinafter referred to as the "Warrant Shares."
The Offering will consist of a minimum of 25 Units ($1,500,000) (the "Minimum
Amount") and a maximum of 46 Units ($2,760,000) of Units (the "Maximum Amount").
Based on the current capitalization of the Company, the maximum number of Shares
that the Company has available for issuance to satisfy the Common Stock
component of the Units is 3,456,635 Shares and the maximum number of Shares that
the Company has available to reserve for issuance to satisfy the Warrant
component of the Units is 1,036,991 Shares. Subject to the actual Common Stock
Closing Price and the availability of sufficient shares of Common Stock as
governed by the Company's Articles of Incorporation and applicable law, the
Company and the Selected Dealer have the right to increase the Maximum Amount.
Subscriptions for the Units will be accepted by the Company at
a price of per Unit calculated above (the "Offering Price"); provided, however,
that the Selected Dealer shall not tender to the Company subscriptions for any
persons or entities who do not qualify as "accredited investors," as such term
is defined in Rule 501 of Regulation D as promulgated under Section 4(2)
("Regulation D") of the Securities Act of 1933, as amended (the "Act"). The
Units will be offered through September 23, 2004 (the "Initial Offering Period")
commencing on the date of the Memorandum, which period may be extended by the
Company and the Selected Dealer through October 25, 2004 (this additional period
and the Initial Offering Period shall be referred to as the "Offering Period").
The date on which the Offering shall terminate shall be referred to as the
"Termination Date."
1
With respect to the Offering, the Company shall provide the
Selected Dealer, on terms set forth herein, the right to offer and sell all of
the Units being offered. The Company and the Selected Dealer may, in their joint
discretion, accept or reject in whole or in part any prospective investment in
the Units or allot to any prospective subscriber less than the number of Units
that such subscriber desires to purchase. Purchases of Units may be made by the
Selected Dealer and its officers, directors, employees and affiliates. All such
purchases, together with purchases by officers, directors, employees and
affiliates of the Company, may be used to satisfy the Minimum Amount if the
Minimum Amount has not been subscribed for on or before the end of the Offering
Period.
The Offering will be made by the Company solely pursuant to
the Memorandum, which at all times will be in form and substance reasonably
acceptable to the Selected Dealer and its counsel and contain such legends and
other information as the Selected Dealer and its counsel may, from time to time,
deem necessary and desirable to be set forth therein. "Memorandum" as used in
this Agreement means the Company's Confidential Private Placement Memorandum
dated July 23, 2004, inclusive of all annexes, and all amendments, supplements
and appendices thereto.
1. Appointment of Selected Dealer.
On the basis of the representations and warranties provided
herein, and subject to the terms and conditions set forth herein, the Selected
Dealer is appointed as the exclusive agent of the Company during the Offering
Period to assist the Company in finding qualified subscribers for the Offering.
On the basis of such representations and warranties and subject to such terms
and conditions, the Selected Dealer hereby accepts such appointment and agrees
to perform its services hereunder in a professional and businesslike manner and
to use its reasonable efforts to assist the Company in finding subscribers of
Units who qualify as "accredited investors," as such term is defined in Rule 501
of Regulation D and to complete the Offering. The Selected Dealer has no
obligation to purchase any of the Units. The Selected Dealer may offer and sell
the Units through dealers selected by the Selected Dealer. Unless sooner
terminated in accordance with this Agreement, the engagement of the Selected
Dealer hereunder shall continue until the later of the Termination Date or the
Final Closing (as defined below).
2. Representations and Warranties. The representations and warranties
contained in this Section 2 are true and correct as of the date of this
Agreement, except as set forth in the Memorandum or the disclosure schedule
attached hereto as Schedule 1.
(a) The Company, and each of its subsidiaries, is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Company, and each of its subsidiaries,
is duly qualified to transact business as a foreign corporation and is in good
standing under the laws of each jurisdiction where the location of its
2
properties or the conduct of its business makes such qualification necessary,
except where the failure to be so qualified would not have a material adverse
effect on the condition (financial or otherwise), earnings, operations,
property, rights, assets, management, business or prospects of the Company or
any of its subsidiaries, considered as a whole ("Material Adverse Effect").
(b) The Company has requisite corporate power and authority to
conduct its business as presently conducted and as proposed to be conducted, to
enter into and perform its obligations under this Agreement and, immediately
prior to the First Closing (as hereinafter defined), the other agreements
contemplated hereby and by the Memorandum (collectively, the "Transaction
Documents"), and immediately prior to the First Closing will have all requisite
power and authority to issue, sell and deliver the Common Stock, the Warrants,
the Warrant Shares, the Selected Dealer Warrant (as hereinafter defined) and the
Selected Dealer Warrant Shares (as hereinafter defined). Upon due execution and
delivery, this Agreement, the Warrants and the Selected Dealer Warrant will
constitute the valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, subject to any applicable
bankruptcy, insolvency or other laws affecting the rights of creditors generally
and to general equitable principles and the availability of specific
performance.
(c) None of the execution and delivery of, or performance by
the Company under, this Agreement, the Warrants or the Selected Dealer Warrant
will conflict with or violate, or will result in the creation or imposition of,
any lien, charge or other encumbrance upon any of the assets of the Company
under any agreement or other instrument to which the Company is a party or by
which the Company or its assets may be bound, or any term of the charter or
by-laws of the Company, or any license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Company or any of its assets.
(d) None of the Shares, the Warrants, the Warrant Shares, the
Selected Dealer Warrant or the Selected Dealer's Warrant Shares are subject to
preemptive or similar rights of any stockholder or security holder of the
Company or an adjustment under the antidilution or exercise rights of any
holders of any outstanding shares of capital stock, options, warrants or other
rights to acquire any securities of the Company. Immediately prior to the First
Closing, a sufficient number of authorized but unissued shares of Common Stock
will have been reserved to take into account Common Stock issuable upon exercise
of the Warrants and the Selected Dealer's Warrant ("Selected Dealer's Warrant
Shares").
(e) No consent, authorization or filing of or with any United
States court or government authority is required in connection with the
consummation of the transactions contemplated herein, except for required
filings with the United States Securities and Exchange Commission (the "SEC")
and applicable "Blue Sky" or state securities commissions relating specifically
to the Offering.
(f) The Memorandum does not include any untrue statement of a
material fact or omit to state any 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.
3
(g) The Memorandum conforms in all material respects with the
Act and the requirements of all other rules and regulations (the "Regulations")
of the SEC relating to offerings of the type contemplated by the Offering, and
the applicable securities laws and the rules and regulations of those
jurisdictions as approved in the sole discretion of the Company wherein the
Units are to be offered and sold. The Units will be offered and sold pursuant to
the registration exemption provided by Section 4(2) of the Act and Regulation D
promulgated thereunder as a transaction not involving a public offering. The
Company has not taken nor will it take any action which conflicts with the
conditions and requirements of, or which would make unavailable with respect to
the Offering, the exemption(s) from registration available pursuant to Section
4(2) of the Act and Regulation D promulgated thereunder. None of the Company or,
to the Company's knowledge, its affiliates, has been subject to any order,
judgment or decree of any court of competent jurisdiction temporarily,
preliminarily or permanently enjoining such person for failing to comply with
Section 503 of Regulation D.
(h) The Company has authorized and outstanding the capital
stock as set forth in the Memorandum as of the date set forth therein. All
outstanding shares of capital stock of the Company are duly authorized, validly
issued and outstanding, fully paid and nonassessable. Except as set forth in the
Memorandum or the SEC Filings: (i) there are no outstanding options, warrants or
other rights permitting or requiring the Company or others to purchase or
acquire any shares of capital stock or other equity securities of the Company or
to pay any dividend or make any other distribution in respect thereof; (ii)
there are no securities issued or outstanding which are convertible into or
exchangeable for shares of capital stock or other equity securities of the
Company and there are no contracts, commitments or understandings to which the
Company is a party, whether or not in writing, to issue or grant any such
option, warrant, right or convertible or exchangeable security; (iii) no shares
of stock or other securities of the Company are reserved for issuance for any
purpose; (iv) there are no voting trusts or other contracts, commitments,
understandings, arrangements or restrictions of any kind to which the Company is
a party with respect to the ownership, voting or transfer of shares of stock or
other securities of the Company, including without limitation, any preemptive
rights, rights of first refusal, proxies or similar rights and (v) no person
holds a right to require the Company to register any securities of the Company
under the Act or to participate in any such registration. The issued and
outstanding shares of capital stock of the Company conform to all statements in
relation thereto contained in the Memorandum and the Memorandum describes all
material terms and conditions thereof. Except as set forth in the Memorandum or
the SEC filings, all issuances by the Company of its securities have been
registered or were exempt from registration under the Act and any applicable
state securities laws.
4
(i) The financial statements, together with the related notes,
of the Company included in the Memorandum present fairly in all material
respects the financial position of the Company as of the respective dates
specified and the results of its operations and cash flow for the respective
periods covered thereby. Except as set forth in such financial statements, the
Memorandum or the SEC Filings, the Company has not incurred any material
liabilities of any kind, whether accrued, absolute, contingent or otherwise or
entered into any material transactions subsequent to February 29, 2004 except in
the ordinary course of its business.
(j) The conduct of business by the Company as presently
conducted is not subject to continuing oversight, supervision, regulation or
examination by any governmental official or body of the United States or any
other jurisdiction wherein the Company conducts such business, except as
described in the Memorandum and except such regulation as is applicable to
commercial enterprises generally. The Company has obtained all requisite
licenses, permits and other governmental authorizations to conduct its business
as presently conducted, except to the extent the failure to so obtain and
maintain would not have a Material Adverse Effect.
(k) Except as set forth in the Memorandum or the SEC Filings,
no default by the Company or, to the knowledge of the Company, any other party
exists in the due performance under any of the agreements referred to in the
Memorandum to which the Company is a party or to which any of its assets are
subject, other than defaults that would not have a Material Adverse Effect.
(l) Except as set forth in the Memorandum or the SEC Filings,
there are no actions, suits, claims, hearings, or proceedings pending before any
court or governmental authority or, to the knowledge of the Company, threatened,
against the Company, or involving its assets or any of its officers or directors
(in their capacity as such) which, if determined adversely to the Company or
such officer or director, would have a Material Adverse Effect or adversely
affect the transactions contemplated by this Agreement or the other Transaction
Documents or the enforceability thereof.
(m) The Company is not: (i) in violation of its charter or
by-laws; (ii) except as set forth in the Memorandum or the SEC Filings, in
default of any indenture, mortgage, deed of trust, note or other agreement or
instrument to which the Company is a party or by which it is or may be bound or
to which any of its assets may be subject; (iii) except as set forth in the
Memorandum or the SEC Filings, in violation of any statute, rule or regulation
which violation would have a Material Adverse Effect; or (iv) except as set
forth in the Memorandum or the SEC Filings, in violation of any judgment, decree
or order applicable to the Company.
(n) Subsequent to the respective dates as of which information
is given in the Memorandum, except as may otherwise be set forth in the
Memorandum, there has been no: (i) Material Adverse Effect; (ii) damage, loss or
destruction, whether or not covered by insurance, with respect to any material
asset or property of the Company; or (iii) agreement to permit any of the
foregoing.
5
(o) The Company has appropriate casualty and liability
insurance coverage, in scope and amounts reasonable and to the Company's
knowledge, customary for similar businesses.
(p) Since January 1, 2002 the Company has filed all reports
required to be filed by it under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including pursuant to Section 13(a) or 15(d) thereof (the
foregoing materials being collectively referred to herein as the "SEC Filings").
As of their respective dates, the SEC Filings complied in all material respects
with the requirements of the Act and the Exchange Act and the rules and
regulations of the SEC promulgated thereunder, and none of the SEC Filings, when
filed, did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. All material agreements to which the Company is a party have
been filed as exhibits to the SEC Filings to the extent required. The financial
statements of the Company included in the SEC Filings comply in all material
respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing.
(q) Except as disclosed in the Memorandum, as of the date of
this Agreement no director, officer or employee of the Company, nor any
affiliate of any such person is presently, directly or indirectly through his or
her affiliation with any other person or entity, a party to any loan from the
Company or any other transaction (other than as an employee) with the Company
providing for the furnishing of services by, or rental of any personal property
from, or otherwise requiring cash payments to any such person.
(r) Except as set forth in the Memorandum, the Company owns
its property and assets free and clear of all mortgages, liens, loans, pledges,
security interests, claims, equitable interests, charges, and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not materially impair the Company's ownership or use of such
property or assets. Except as set forth in the Memorandum, the Company is in
compliance in all material respects with such leases and, holds a valid
leasehold interest free of any liens, claims, or encumbrances.
(s) Since the adoption of the Xxxxxxxx-Xxxxx Act of 2002 (the
"New Act"), the Company has complied in all material respects with the laws,
rules and regulation under the New Act to the extent applicable to an OTC
Bulletin Board company.
(t) The Company has made or filed all federal, state and
foreign income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject and which are due (unless and only to
the extent that the Company has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes or has obtained an
extension of the deadline for such filing) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
6
being contested in good faith and has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. To the Company's
knowledge, there are no unpaid taxes in any material amount claimed to be due by
the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim. The Company has not executed a waiver with
respect to the statute of limitations relating to the assessment or collection
of any foreign, federal, statue or local tax. To the Company's knowledge, none
of the Company's tax returns is presently being audited by any taxing authority.
(u) Neither the sale of the Units nor its use of the proceeds
thereof will violate the Trading with the Enemy Act, as amended, or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto. Without limiting the foregoing, neither the Company nor
any of its subsidiaries (a) is a person whose property or interests in property
are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) engages in
any dealings or transactions, or be otherwise associated, with any such person.
The Company and its subsidiaries are in compliance with the USA Patriot Act of
2001 (signed into law October 26, 2001).
3. Selected Dealer Compensation.
(a) The Company shall cause to be delivered to the Selected
Dealer copies of the Memorandum and has consented, and hereby consents, to the
use of such copies for the purposes permitted by the Act and applicable
securities laws and in accordance with the terms and conditions of this
Agreement, and hereby authorizes the Selected Dealer and its Selected Dealers,
employees and Selected Dealers to use the Memorandum in connection with the sale
of the Units until the Termination Date, and no person or entity is or will be
authorized to give any information or make any representations other than those
contained in the Memorandum or to use any offering materials other than those
contained in the Memorandum in connection with the sale of the Units.
(b) The Company shall make available to the Selected Dealer
and its representatives such information as may be reasonably requested in
making a reasonable investigation of the Company and its affairs and shall
provide access to such employees during normal business hours as shall be
reasonably requested by the Selected Dealer.
(c) As compensation for its services under this Agreement, the
Selected Dealer will receive (i) a cash fee (the "Selected Dealer Fee") equal to
8.0% of the aggregate proceeds that the Company receives from the sale of the
Units and (ii) reimbursement of up to $30,000 of non-accountable expenses
incurred in connection with this Offering (the "Expense Allowance").
(d) As additional compensation hereunder, at each Closing, the
Company will issue to the Selected Dealer or its designees, for nominal
7
consideration, warrants ("Selected Dealer Warrants") to purchase 20% of the
number of shares of Common Stock included in the Units sold at such Closing,
exercisable at the same price per share as the Warrants included in the Units
issued at such closing. The Selected Dealer Warrants shall be afforded the same
terms that contained in the Warrants. The Selected Dealer shall have
registration rights as shall be set forth in the Registration Rights Agreement
annexed to the Memorandum.
(e) Payment of the proportional amount of the Selected Dealer
Fee will be made out of the proceeds of subscriptions for the Units sold at each
Closing (as hereinafter defined) and Selected Dealer Warrants will be issued to
the Selected Dealer and its designees at each Closing in proportion to the Units
sold at each Closing. Payment of the Expense Allowance will be made out of the
proceeds of subscriptions for Units at the First Closing.
4. Subscription and Closing Procedures.
(a) The Units sold in the Offering will be sold pursuant to
Subscription Agreements between the Company and the subscribers in the Offering
in the form annexed to the Memorandum.
(b) All funds for subscriptions received from the sale of
Units in the Offering will be deposited into the escrow account (the "Escrow
Account") established for such purpose with Signature Bank, New York, New York.
(the "Escrow Agent"). All such funds for subscriptions will be held in the
Escrow Account pursuant to the terms of the Escrow Agreement by and among the
Company, the Selected Dealer and the Escrow Agent. The Company will pay all of
the Escrow Agent's customary fees related to the establishment and maintenance
of the Escrow Account.
(c) If subscriptions for at least the Minimum Amount have been
accepted prior to the Termination Date, the funds therefor have been collected
by the Escrow Agent and all of the conditions set forth elsewhere in this
Agreement are fulfilled, a closing shall be held promptly with respect to the
Units sold (the "First Closing"). Thereafter, the remaining Units will continue
to be offered and sold until the Termination Date. Additional closings
("Closings") may from time to time be conducted at times mutually agreeable with
respect to additional Units sold with the final closing ("Final Closing") to
occur within 10 days from the earlier of the Termination Date or the sale of all
Units offered. Delivery of payment for the accepted subscriptions for Units from
the funds held in the Escrow Account will be made at each Closing at the
Company's offices against delivery of the Units by the Company at the address
set forth in Section 14 hereof (or at such other place as may be designated by
the Company). Executed certificates for the Common Stock, Warrants and the
Selected Dealer's Warrants will be in such authorized denominations and, with
respect to investors located by the Selected Dealer, will be registered in such
names as the Selected Dealer may request and will be made available to the
Selected Dealer for checking and packaging at the Selected Dealer's office as
soon as practicable following each closing.
(d) If subscriptions for the Minimum Amount have not been
received and accepted by the Company on or before the Termination Date for any
8
reason, the Offering will be terminated, no Units will be sold, and the Escrow
Agent will, at the request of the Company and the Selected Dealer, cause all
monies received from subscribers located by the Selected Dealer for the Units to
be promptly returned to such subscribers without interest, penalty, expense or
deduction.
5. Further Covenants. The Company hereby covenants and agrees that:
(a) Except with the prior written notice to the Selected
Dealer, the Company shall not, at any time prior to the Final Closing, knowingly
take any action which would cause any of the representations and warranties made
by it in this Agreement not to be complete and correct in all material respects
on and as of each Closing date with the same force and effect as if such
representations and warranties had been made on and as of each such date.
(b) If, at any time prior to the Final Closing, any event
shall occur which materially affects the Company or as a result of which it
becomes necessary to amend or supplement the Memorandum so that the
representations and warranties herein remain true and correct in all material
respects, or in case it shall be necessary to amend or supplement the Memorandum
to comply with Regulation D or any other applicable securities laws or
regulations, the Company will promptly notify the Selected Dealer and shall, at
its sole cost, prepare and furnish to the Selected Dealer copies of appropriate
amendments and/or supplements in such quantities as the Selected Dealer may
reasonably request. The Company will not at any time before the Final Closing,
prepare or use any amendment or supplement to the Memorandum of which the
Selected Dealer will not previously have been advised and furnished with a copy,
or which is not in compliance in all material respects with the Act and other
applicable securities laws. As soon as the Company is advised thereof, the
Company will advise the Selected Dealer and its counsel, and confirm the advice
in writing, of any order preventing or suspending the use of the Memorandum, or
the suspension of the qualification or registration of the Common Stock, Warrant
Shares and/or Selected Dealer Warrant Shares or the suspension of any exemption
for such qualification or registration thereof for offering in any jurisdiction,
or of the institution or threatened institution of any proceedings for any of
such purposes, and the Company will use its best efforts to prevent the issuance
of any such order and, if issued, to obtain as soon as reasonably possible the
lifting thereof.
(c) The Company shall comply with the Act, the Exchange Act
and the rules and regulations thereunder, all applicable state securities laws
and the rules and regulations thereunder in the states that the Units are
qualified or registered for sale or exempt from such qualification or
registration, so as to permit the continuance of the sales of the Units, and
will file with the SEC, and shall promptly thereafter forward to the Selected
Dealer, any and all reports on Form D as are required.
(d) The Company shall use best commercially reasonable efforts
to qualify the Common Stock, the Warrant Shares and the Selected Dealer's
Warrant Shares for sale under the securities laws of such jurisdictions in the
United States as may be mutually agreed to by the Company and the Selected
Dealer, and the Company will make such applications and furnish information as
may be required for such purposes, provided that the Company will not be
9
required to qualify as a foreign corporation in any jurisdiction or execute a
general consent to service of process. The Company will, from time to time,
prepare and file such statements and reports as are or may be required to
continue such qualifications in effect for so long a period as the Selected
Dealer may reasonably request with respect to the Offering.
(e) The Company shall place a legend on the certificates
representing the Common Stock, the Warrants, the Warrant Shares, the Selected
Dealer Warrant and the Selected Dealer Warrant Shares that the securities
evidenced thereby have not been registered under the Act or applicable state
securities laws, setting forth or referring to the applicable restrictions on
transferability and sale of such securities under the Act and applicable state
laws.
(f) The Company shall apply the net proceeds from
the sale of the Units in the manner set forth in the Memorandum.
(g) During the Offering Period and as set forth in the
Memorandum, the Company shall afford each prospective purchaser of Units the
opportunity to ask questions of and receive answers from an officer of the
Company concerning the terms and conditions of the Offering and the opportunity
to obtain such other additional information necessary to verify the accuracy of
the Memorandum to the extent it possesses such information or can acquire it
without unreasonable expense.
(h) The Company will be responsible for all printing costs and
expenses in connection with furnishing Selected Dealer with such quantities of
the Memorandum and other documents and instruments relating to the Offering as
the Selected Dealer may reasonably request. In addition, the Company will pay
all reasonable filing fees, costs and legal fees for all Blue Sky services and
related filings and expenses of counsel of which $6,000 ($2,500 on account of
legal fees and expenses and $3,500 on account of filings fees), shall be paid
prior to the printing of the Memorandum. Any unused filing fees shall be
promptly returned to the Company after the Final Closing. The state Blue Sky
filings shall be prepared by the Selected Dealer's Blue Sky counsel and all Blue
Sky filing fees shall be paid by the Company prior to any filing. The Company's
counsel shall be responsible for the preparation of and the filing of the
federal Form D. Further, as promptly as practicable after the Closing, the
Company shall prepare, at its own expense, velobound "closing binders" relating
to the Offering and will distribute such binders up to a maximum of four (4)
binders to the individuals designated by counsel to the Selected Dealer.
(i) Except with the prior written consent of the Selected
Dealer, not to be unreasonably withheld or delayed, and except as contemplated
by the Memorandum, the Company shall not, at any time prior to the Closing,
engage in or commit to engage in any transaction outside the ordinary course of
business or issue, agree to issue or set aside for issuance any securities (debt
or equity) or any rights to acquire any such securities except as contemplated
by the Memorandum or outside of the ordinary course of business incur any
material indebtedness in excess of $200,000 or dispose of any material assets or
make any material acquisition or change in its business or operations.
10
(j) Until the Termination Date, neither the Company nor any
person or entity acting on its behalf will negotiate with any other Selected
Dealer or underwriter with respect to a private or public offering of the
Company's or any subsidiary's debt or equity securities. Neither the Company nor
anyone acting on its behalf will, until the Termination Date, without the prior
written consent of the Selected Dealer, offer for sale to, or solicit offers to
subscribe for Shares from, or otherwise approach or negotiate in respect thereof
with, any other person.
(k) In the event that Selected Dealer introduces the Company
to a party or entity (excluding, however, any third parties in which the Company
can demonstrate a preexisting relationship) ("SBIL Introduced Party") and as a
result of such introduction, a Financing Transaction is consummated within one
year following the final closing of the Offering or the termination of this
Agreement ("Tail Period"), the Company shall pay Selected Dealer upon the
consummation of such Financing Transaction a "tail" fee equal to five percent
(5%) of the gross proceeds raised in such transaction. SBIL shall deliver a list
setting forth the names of all SBIL Introduced Parties within 15 business days
of termination or expiration of this Agreement for purposes of the "tail"
provisions as described in this section. For purposes hereunder the term
"Financing Transaction" means a private placement, public offering, syndication
or other sale of equity or debt securities of the Company or other on-balance or
off-balance sheet corporate finance transaction of the Company.
(l) Until the expiration of the Tail Period, the Company shall
not negotiate, enter into or attempt to negotiate or enter into any agreement,
covenant or understanding, written or oral, with any other person or entity,
directly or indirectly, that could undermine any of the rights or interests of
the Selected Dealer, in, under or in respect of this Agreement and will not to
interfere with, circumvent, frustrate or otherwise impede in any manner the
realization by the Selected Dealer of any of the objectives it seeks or benefits
derived, or to be derived, from any of the foregoing.
(m) In the event a Closing occurs, for a period of not less
than two (2) years from the date thereof, the Company will, at Selected Dealer's
option and if so requested by Selected Dealer, recommend and use its best
efforts to elect one designee of Selected Dealer, reasonably satisfactory to the
Company, as a member of its Board of Directors; such designee, if elected or
appointed, shall attend meetings of the Board and receive no more or less
compensation than is paid to other non-management directors of the Company and
shall be entitled to receive reimbursement for all reasonable costs incurred in
attending such meetings including, but not limited to, food, lodging and
transportation. To the extent permitted by law, the Company will agree to
indemnify Selected Dealer's designee for the actions of such designee as a
director of the Company. In the event the Company maintains a liability
insurance policy affording coverage for the acts of its officers and directors,
it will agree, to include Selected Dealer's designee as an insured under such
policy. If Selected Dealer does not exercise its option to designate such member
of the Company's Board of Directors, Selected Dealer shall nonetheless have the
right to send a representative (who need not be the same individual from meeting
to meeting) to observe each meeting of the Board of Directors. The Company
agrees to give Selected Dealer notice of each such meeting (or copies of any
consents in lieu of meetings) and to provide Selected Dealer with an agenda and
minutes of the meeting no later than it gives such notice and provides such
items to the directors.
11
(n) The Company will cause Xxxxx Xxxxxx ("Xxxxxx") and Xxxxxx
Xxxxxxx ("Couture") to suspend their respective rights to receive shares of
Common Stock in lieu of salary as per the terms of their respective employment
agreements until the Termination Date. A written agreement evidencing same shall
be provided to the Selected Dealer at the time of execution of this Agreement or
promptly thereafter.
(o) The Company will cause Xxxxxx and Couture to forfeit an
aggregate of 1,800,000 options to purchase Common Stock in the manner described
in the Memorandum.
6. Conditions of Selected Dealer's Obligations. The obligations of the
Selected Dealer hereunder are subject to the fulfillment, at or before each
Closing, of the following additional conditions:
(a) Each of the representations and warranties of the Company
shall be true and correct in all material respects when made on and as of each
Closing Date as though made on and as of each Closing, except as to
representations and warranties made as of a specific date.
(b) The Company shall have performed and complied in all
material respects with all agreements, covenants and conditions related to this
Offering required to be performed and complied with by it at or before each
Closing.
(c) No order suspending the use of the Memorandum or enjoining
the Offering or sale of the Units shall have been issued, and no proceedings for
that purpose or a similar purpose shall have been initiated or pending, or, to
the Company's knowledge, be contemplated or threatened by a court or
governmental authority.
(d) The Selected Dealer shall have received certificates of
the Chief Executive Officer and Chief Financial Officer of the Company, dated as
of each Closing Date, certifying, as to the fulfillment of the conditions set
forth in subparagraphs (a), (b) and (c) above.
(e) The Company shall have delivered to the Selected Dealer:
(i) a currently dated good standing certificate from the secretary of state of
its jurisdiction of incorporation; and (ii) resolutions of the Company's Board
of Directors approving this Agreement and the transactions and agreements
contemplated by this Agreement and the Memorandum, certified by the Secretary of
the Company.
(f) At each Closing, the Company shall have paid to the
Selected Dealer, the Selected Dealer Fee and the Expense Allowance as set forth
in Sections 3(c) hereof and shall execute and deliver to the Selected Dealer,
the Selected Dealer Warrant as set forth in Section 3(d).
12
(g) The Company shall deliver to the Selected Dealer a signed
opinion of Xxxxxx, Xxxxxxx & Xxxxx, LLP, special counsel to the Company
("Company Counsel"), dated as of each Closing Date, which opinion shall cover
due incorporation of the Company, corporate power, foreign qualifications,
capitalization, due authorization, the validly issued, fully paid and
nonassessable nature of the Common Stock underlying the Units, reservation of
shares of Common Stock underlying the Units, the due authorization and
enforceability of the transaction documents, the valid execution and delivery of
the transaction documents, no violation of the Company's organizational
documents, and the Company's compliance with the requirements of Regulation D
under the Act.
(h) All proceedings taken at or prior to each Closing in
connection with the authorization, issuance and sale of the Units and the
Selected Dealer Warrant will be reasonably satisfactory in form and substance to
the Selected Dealer and its counsel, and such counsel shall have been furnished
with all such documents, certificates and opinions as they may reasonably
request upon reasonable prior notice in connection with the transactions
contemplated hereby.
(i) A Registration Rights Agreement covering the Common Stock,
the Warrant Shares and the Selected Dealer Warrant Shares in the form attached
to the Memorandum shall be executed and delivered by the Company.
7. Scope of Responsibility. Neither the Selected Dealer nor
any of its affiliates (nor any of their respective directors, officers, Selected
Dealers and employees, and each person who controls the Selected Dealer within
the meaning of the Act) shall be liable to the Company or to any other person
claiming through the Company for any claim, loss, damage, liability, cost or
expense suffered by the Company or any such other person arising out of or
related to this engagement except for a claim, loss or expense that arises out
of or is based upon an action or failure to act by the Selected Dealer that
constitutes bad faith, willful misconduct or gross negligence on the part of the
Selected Dealer.
8. Representation and Warranties of the Selected Dealer.
(a) The Selected Dealer hereby represents and warrants to the Company
that it is a registered broker-dealer pursuant to the Exchange Act, a member in
good standing of the National Association of Securities Dealers, Inc., and
registered and qualified to act in each state and jurisdiction in which it is
required to be registered as such in order to offer and sell the Units.
(b) The Selected Dealer shall not engage in any form of general
solicitation or general advertising that is prohibited by Regulation D in
connection with the Offering, or take any action that might reasonably be
expected to jeopardize the availability for the Offering of the exemption from
registration provided by Rule 506 under Regulation D. The Selected Dealer shall
comply with all laws in effect in any jurisdiction in which securities of the
Company are offered by it and the rules, regulations and orders of any
securities administrator existing or adopted thereunder, including without
limitation, the Act, the Exchange Act and the rules and regulations thereunder.
Prior to the sale by the Company to any purchaser of any of the Units, the
Selected Dealer will furnish to such purchaser a copy of the Memorandum.
13
(c) The Selected Dealer represents and warrants to the Company that
the person who has signed this Agreement on its behalf is duly authorized to so
sign, and this Agreement is a valid and binding obligation of the Selected
Dealer, enforceable in accordance with its terms.
9. Confidentiality. In the course of its services under this
Agreement, the Selected Dealer will have access to Confidential Information (as
defined below) concerning the Company. The Selected Dealer agrees that all
Confidential Information will be treated by the Selected Dealer as confidential
in all respects. The Selected Dealer hereby agrees that it and its dealers,
affiliates and representatives shall: (i) use the Confidential Information
solely for the purposes of its engagement hereunder; and (ii) not disclose any
Confidential Information to any other party except to those Selected Dealer
representatives who need to know such information for the purposes of the
Selected Dealer's engagement hereunder and who have been advised of such
confidentiality restrictions. The term "Confidential Information" shall mean all
information, whether written or oral, which is or has been disclosed by the
Company or its affiliates, Selected Dealers or representatives to the Selected
Dealer or any of its representatives in connection with the Offering and the
transactions contemplated hereby, which is not in the public domain, but shall
not include: (i) information which is publicly disclosed other than by the
Selected Dealer in violation of this Agreement or other obligation of the
Selected Dealer; (ii) information which is obtained by the Selected Dealer from
a third party that (A) the Selected Dealer does not know to have violated, or to
have obtained such information in violation of, any obligation to the Company or
its affiliates with respect to such information, and (B) does not require the
Selected Dealer to refrain from disclosing such information; and (iii)
information which is required to be disclosed by the Selected Dealer or its
outside counsel under compulsion of law (whether by oral question,
interrogatory, subpoena, civil investigative demand or otherwise) or by order of
any court or governmental or regulatory body to whose supervisory authority the
Selected Dealer is subject; provided that, in such circumstance, the Selected
Dealer will give the Company prior written notice of such disclosure and
cooperate with the Company to minimize the scope of any such disclosure. The
Selected Dealer's obligation under this section shall continue after the date of
expiration, termination or completion of this Agreement or the Selected Dealer's
engagement hereunder.
10. Indemnification.
(a) The Company will: (i) indemnify and hold harmless the
Selected Dealer, its selected dealers and their respective officers, directors,
employees and each person, if any, who controls such persons within the meaning
of the Act (each an "Indemnitee") against, and pay or reimburse each Indemnitee
for, any and all losses, claims, damages, liabilities or out-of-pocket expenses
whatsoever (or actions or proceedings or investigations in respect thereof),
joint or several (which will, for all purposes of this Agreement, include, but
not be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees, including appeals), to which any Indemnitee may
become subject, under the Act or otherwise, in connection with the offer and
sale of the Units, whether such losses, claims, damages, liabilities or expenses
shall result from any claim of any Indemnitee or any third party; and (ii)
14
reimburse each Indemnitee for any legal or other expenses reasonably incurred in
connection with investigating or defending against any such loss, claim, action,
proceeding or investigation; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, damage or liability
results from (A) an untrue statement or alleged untrue statement of a material
fact made in the Memorandum, or an omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in reliance upon and in conformity with
written information furnished to the Company by the Selected Dealer or any such
controlling persons specifically for use in the preparation thereof, (B) any
violations by the Selected Dealer of the Act or state securities laws which does
not result from a violation thereof by the Company or any of its affiliates, or
(C) the gross negligence, willful misconduct, or bad faith of the Selected
Dealer or the party claiming a right to indemnification. In addition to the
foregoing agreement to indemnify and reimburse, the Company will indemnify and
hold harmless each Indemnitee against any and all losses, claims, damages,
liabilities or expenses whatsoever (or actions or proceedings or investigations
in respect thereof), joint or several (which shall for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees, including appeals) to which
any Indemnitee may become subject insofar as such costs, expenses, losses,
claims, damages or liabilities arise out of or are based upon the claim of any
person or entity that he or it is entitled to broker's or finder's fees from any
Indemnitee in connection with the Offering. The foregoing indemnity agreements
will be in addition to any liability which the Company may otherwise have.
(b) The Selected Dealer will indemnify and hold harmless the
Company, its officers, directors, Selected Dealers, employees and each person,
if any, who controls the Company within the meaning of the Act against, and pay
or reimburse any such person for, any and all losses, claims, damages,
liabilities or expenses whatsoever (or actions, proceedings or investigations in
respect thereof) joint or several (which shall for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees, including appeals) to which
the Company or any such person may become subject under the Act or otherwise,
whether such losses, claims, damages, liabilities or expenses shall result from
any claim of the Company, any of its officers, directors, Selected Dealers,
employees, any person who controls the Company within the meaning of the Act or
any third party, insofar as such losses, claims, damages or liabilities are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Memorandum but only with reference to information contained in
the Memorandum relating to the Selected Dealer furnished in writing to the
Company by the Selected Dealer or any controlling person, specifically for use
in the preparation thereof. The Selected Dealer will reimburse the Company or
any such person for any legal or other expenses reasonably incurred in
connection with investigating or defending against any such loss, claim, damage,
liability or action, proceeding or investigation to which such indemnity
obligation applies. The foregoing indemnity agreements will be in addition to
any liability which the Selected Dealer may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action, claim, proceeding or
investigation (the "Action"), such indemnified party, if a claim in respect
thereof is to be made against the indemnified party under this Section 10, will
notify the indemnifying party of the commencement thereof, but the omission to
15
so notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party under this Section 10 unless the indemnifying
party has been substantially prejudiced by such omission. The indemnifying party
will have the right, at its option, to assume the defense thereof subject to the
provisions herein stated, with counsel reasonably satisfactory to such
indemnified party, which consent shall not be unreasonably withheld. The
indemnified party will have the right to employ separate counsel in any such
Action and to participate in the defense thereof, but the fees and expenses of
such counsel will not be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the Action with counsel reasonably
satisfactory to the indemnified party, provided, however, that if the
indemnified party shall be requested by the indemnifying party to participate in
the defense thereof or shall have concluded in good faith and specifically
notified the indemnifying party either that there may be specific defenses
available to it which are different from or additional to those available to the
indemnifying party or that such Action involves or could have a material adverse
effect upon it with respect to matters beyond the scope of the indemnity
agreements contained in this Agreement, then the counsel representing the
indemnified party, to the extent made necessary by such defenses, shall have the
right to direct such defenses of such Action on its behalf and in such case the
reasonable fees and expenses of such counsel in connection with any such
participation or defenses shall be paid by the indemnifying party. No settlement
of any Action against an indemnified party will be made without the consent of
the indemnified party, which consent shall not be unreasonably withheld or
delayed in light of all factors of importance to such party, unless such
settlement includes an unconditional release of such indemnified party from all
liability arising or that may arise out of such Action. No indemnified party
shall settle any Action for which indemnification may be sought by him or it
hereunder without the prior written consent of the indemnifying party.
11. Contribution. To provide for just and equitable
contribution, if: (i) an indemnified party makes a claim for indemnification
pursuant to Section 10 hereof and it is finally determined, by a judgment, order
or decree not subject to further appeal that such claims for indemnification may
not be enforced, even though this Agreement expressly provides for
indemnification in such case; or (ii) any indemnified or indemnifying party
seeks contribution under the Act, the Exchange Act, or otherwise, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Selected Dealer on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Selected Dealer on the other shall be deemed to be in the same
proportion as the total net proceeds from the Offering (before deducting
expenses) received by the Company bear to the total compensation received by the
Selected Dealer. The relative fault, in the case of an untrue statement, alleged
untrue statement, omission or alleged omission will be determined by, among
other things, whether such statement, alleged statement, omission or alleged
omission relates to information supplied by the Company or by the Selected
Dealer, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, alleged statement, omission or
16
alleged omission. The Company and the Selected Dealer agree that it would be
unjust and inequitable if the respective obligations of the Company and the
Selected Dealer for contribution were determined by pro rata allocation of the
aggregate losses, liabilities, claims, damages and expenses or by any other
method or allocation that does not reflect the equitable considerations referred
to in this Section 11. No person guilty of a fraudulent misrepresentation
(within the meaning of Section 10(f) of the Act) will be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 11, each person, if any, who
controls the Selected Dealer within the meaning of the Act will have the same
rights to contribution as the Selected Dealer, and each person, if any, who
controls the Company within the meaning of the Act will have the same rights to
contribution as the Company, subject in each case to the provisions of this
Section 11. Anything in this Section 11 to the contrary notwithstanding, no
party will be liable for contribution with respect to the settlement of any
claim or action effected without its written consent. This Section 11 is
intended to supersede, to the extent permitted by law, any right to contribution
under the Act, the Exchange Act or otherwise available.
12. Termination.
(a) The engagement of the Selected Dealer may be terminated
by the Selected Dealer at any time prior to the
expiration of the Offering Period (such date of termination of the engagement of
the Selected Dealer or the date of termination of the engagement of the Selected
Dealer under Section 12(b) below, as the case may be, the "Expiration Date") in
the event that: (i) any of the representations or warranties of the Company
contained herein or in the Memorandum shall prove to have been false or
misleading in any material respect when made or deemed made; (ii) the Company
shall have failed to perform any of its material obligations hereunder; (iii)
the Selected Dealer shall determine that it is reasonably likely that any of the
conditions to Closing set forth herein will not or cannot be satisfied; or (iv)
there shall occur any event which materially and adversely affects the
transactions contemplated hereby. In the event of any such termination
occasioned by or arising out of or in connection with any breach or failure
hereunder on the part of the Company described in clauses (i) or (ii) above, the
Selected Dealer shall be entitled to receive, in addition to other rights and
remedies it may have hereunder, at law or otherwise, an amount equal to the sum
of: (A) all unpaid Selected Dealer Fees earned through the Expiration Date based
upon the amount of funds then in escrow, (B) the full amount of the unpaid
Expense Allowance, (C) any amounts as may be due under any indemnity or
contribution obligation provided herein, at law or otherwise and (D) the amounts
that become payable thereafter as a result of purchases of the Company's
securities by SBIL Introduced Parties Investors in accordance with the terms of
Section 5(k) above. In the event of any such termination occasioned by or
arising out of or in connection with any breach or failure hereunder on the part
of the Company described in clauses (iii) or (iv) above, the Selected Dealer
shall be entitled to receive, in addition to other rights and remedies it may
have hereunder, at law or otherwise, an amount equal to the sum of: (A) the full
amount of the unpaid Expense Allowance (B) any amounts as may be due under any
indemnity or contribution obligation provided herein, at law or otherwise and
(C) the amounts that become payable thereafter as a result of purchases of the
Company's securities by SBIL Introduced Parties Investors in accordance with the
terms of Section 5(k) above.
17
(b) The engagement of the Selected Dealer may be terminated by
the Company at any time prior to the Expiration Date in the event: (i) any of
the representations or warranties of the Selected Dealer contained herein shall
prove to have been false or misleading in any material respect when made or
deemed made; (ii) the Selected Dealer shall have failed to perform any of its
material obligations hereunder, (iii) there shall occur any event described in
Section 12(a)(iv) above not occasioned by or arising out of or in connection
with any breach or failure hereunder on the part of the Company or (iv) of the
gross negligence, bad faith, or willful misconduct of the Selected Dealer or its
representatives. In the event of any termination by the Company pursuant to
clause (i), (ii) or (iii) above, the Selected Dealer shall be entitled to retain
the amount of the Expense Allowance accrued through the Expiration Date, but
shall be entitled to no other amounts whatsoever except (A) as may be due under
any indemnity or contribution obligation provided herein, at law or otherwise
and (B) the amounts that become payable thereafter as a result of purchases of
the Company's securities by SBIL Introduced Parties Investors in accordance with
the terms of Section 5(k) above.
(c) Upon any such termination, the Escrow Agent will, at the
request of the Selected Dealer, cause all monies received in respect of
subscriptions for Units then in escrow to be promptly returned to such
subscribers without interest, penalty, expense or deduction.
13. Survival. The provisions of Sections 5(k), 5(l), 9, 10,
11, 12, 13, 14, 15, 16, 17 and 18 shall survive any termination hereunder.
14. Notices. All communications hereunder will be in writing
and, except as otherwise expressly provided herein or after notice by one party
to the other of a change of address, if sent to the Selected Dealer, will be
mailed, delivered or telefaxed and confirmed to Sands Brothers International
Limited, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telefax number (000) 000-0000
with a copy to Xxxxxxx Xxxxxx LLP, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000, Attn: Xxxxxx X. Xxxxxxx, Esq., telefax number (000) 000-0000, and if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to RMS
Titanic, Inc., 0000 Xxxxxxxxx Xxxx XX, Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Xxxxx Xxxxxx, telefax number (000) 000-0000 with a copy to Xxxxxx, Xxxxxxx &
Xxxxx LLP, 0000 Xxxxxx & Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attn: Xxxxxx X.
Xxxxx, Esq., telefax number (000) 000-0000.
15. Governing Law, Jurisdiction. This Agreement shall be
governed by and construed under the laws of the State of New York as applied to
agreements among New York residents entered into and to be performed entirely
within New York. Each of the parties hereto (1) agree that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in New York State Supreme Court, County of New York, or
in the United States District Court for the Southern District of New York, (2)
waive any objection which the Company may have now or hereafter to the venue of
any such suit, action or proceeding, and (3) irrevocably consent to the
jurisdiction of the New York State Supreme Court, County of New York, and the
United States District Court for the Southern District of New York in any such
suit, action or proceeding. Each of the parties hereto further agrees to accept
18
and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the New York State Supreme Court, County of New
York, or in the United States District Court for the Southern District of New
York and agree that service of process upon it mailed by certified mail to its
address shall be deemed in every respect effective service of process upon it,
in any such suit, action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
16. Miscellaneous. No provision of this Agreement may be
changed or terminated except by a writing signed by the party or parties to be
charged therewith. Unless expressly so provided, no party to this Agreement will
be liable for the performance of any other party's obligations hereunder. Any
party hereto may waive compliance by the other with any of the terms, provisions
and conditions set forth herein; provided, however, that any such waiver shall
be in writing specifically setting forth those provisions waived thereby. No
such waiver shall be deemed to constitute or imply waiver of any other term,
provision or condition of this Agreement.
17. Entire Agreement. This Agreement together with any other
agreement referred to herein supersedes all prior agreements between the parties
with respect to the Offering and the subject matter hereof.
18. Counterparts. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be enforceable against
the parties actually executing such counterparts and all of which together shall
constitute one and the same instrument.
*****
19
If the foregoing is in accordance with your understanding of the
agreement, kindly sign and return this Agreement, whereupon it will become a
binding agreement between the Company and the Selected Dealer in accordance with
its terms.
RMS TITANIC, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------------
Title: President and CEO
----------------------------------------
Date: July 23, 2004
----------------------------------------
Accepted and agreed to this
23rd day of July, 2004
SANDS BROTHERS INTERNATIONAL LIMITED
By:
-----------------------------------
Name:
--------------------------
Title:
--------------------------
Date:
--------------------------
