AMERICANA PUBLISHING, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: March __, 2005
Newbridge Securities Corporation
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Ladies and Gentlemen:
The undersigned, Americana Publishing, Inc., a Colorado corporation (the "Company"), hereby agrees with
Newbridge Securities Corporation (the "Placement Agent") and Cornell Capital Partners, LP, a Delaware Limited
Partnership (the "Investor"), as follows:
Offering. The Company hereby engages the Placement Agent to act as its exclusive placement
agent in connection with the Standby Equity Distribution Agreement dated the date hereof (the "Standby Equity
Distribution Agreement"), pursuant to which the Company shall issue and sell to the Investor, from time to time,
and the Investor shall purchase from the Company (the "Offering") up to Ten Million U.S. Dollars ($10,000,000) of
the Company's common stock (the "Commitment Amount"), par value US$0.001 per share (the "Common Stock"), at price
per share equal to the Purchase Price, as that term is defined in the Standby Equity Distribution Agreement. The
Placement Agent services shall consist of reviewing the terms of the Standby Equity Distribution Agreement and
advising the Company with respect to those terms.
All capitalized terms used herein and not otherwise defined herein shall have the same meaning ascribed
to them as in the Standby Equity Distribution Agreement. The Investor will be granted certain registration
rights with respect to the Common Stock as more fully set forth in the Registration Rights Agreement between the
Company and the Investor dated the date hereof (the "Registration Rights Agreement"). The documents to be
executed and delivered in connection with the Offering, including, but not limited, to the Company's latest
Quarterly Report on Form 10-QSB as filed with the United States Securities and Exchange Commission, this
Agreement, the Standby Equity Distribution Agreement, the Registration Rights Agreement, and the Escrow Agreement
dated the date hereof (the "Escrow Agreement"), are referred to sometimes hereinafter collectively as the
"Offering Materials." The Company's Common Stock purchased by the Investor hereunder or to be issued in
connection with the conversion of any debentures are sometimes referred to hereinafter as the "Securities." The
Placement Agent shall not be obligated to sell any Securities.
Compensation.
Upon the execution of this Agreement, the Company shall issue to the Placement Agent or its
designee shares of the Company's Common Stock in an amount equal to Ten Thousand U.S. Dollars (US$10,000) divided
by the volume weighted average price of the Company's Common Stock, as quoted by Bloomberg, LP, on the date
hereof (the "Placement Agent's Shares"). The Placement Agent shall be entitled to "piggy-back" registration
rights, which shall be triggered upon registration of any shares of Common Stock by the Company pursuant to the
Registration Rights Agreement dated the date hereof.
Representations, Warranties and Covenants of the Placement Agent.
The Placement Agent represents, warrants and covenants as follows:
(i) The Placement Agent has the necessary power to enter into this Agreement and to consummate the
transactions contemplated hereby.
(ii) The execution and delivery by the Placement Agent of this Agreement and the consummation of the
transactions contemplated herein will not result in any violation of, or be in conflict with, or constitute a
default under, any agreement or instrument to which the Placement Agent is a party or by which the Placement
Agent or its properties are bound, or any judgment, decree, order or, to the Placement Agent's knowledge, any
statute, rule or regulation applicable to the Placement Agent. This Agreement when executed and delivered by the
Placement Agent, will constitute the legal, valid and binding obligations of the Placement Agent, enforceable in
accordance with their respective terms, except to the extent that (a) the enforceability hereof or thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally, (b) the enforceability hereof or thereof is subject to general
principles of equity, or (c) the indemnification provisions hereof or thereof may be held to be in violation of
public policy.
(iii) Upon receipt and execution of this Agreement, the Placement Agent will promptly forward copies of this
Agreement to the Company or its counsel and the Investor or its counsel.
(iv) The Placement Agent will not intentionally take any action that it reasonably believes would cause the
Offering to violate the provisions of the Securities Act of 1933, as amended (the "1933 Act"), the Securities
Exchange Act of 1934 (the "1934 Act"), the respective rules and regulations promulgated thereunder (the "Rules
and Regulations") or applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent is a member of the National Association of Securities Dealers, Inc., and is a
broker-dealer registered as such under the 1934 Act and under the securities laws of the states in which the
Securities will be offered or sold by the Placement Agent unless an exemption for such state registration is
available to the Placement Agent. The Placement Agent is in material compliance with the rules and regulations
applicable to the Placement Agent generally and applicable to the Placement Agent's participation in the Offering.
Representations and Warranties of the Company.
The Company represents and warrants as follows:
(vi) The execution, delivery and performance of each of this Agreement, the Standby Equity Distribution
Agreement, the Escrow Agreement, and the Registration Rights Agreement have been or will be duly and validly
authorized by the Company and is, or with respect to this Agreement, the Standby Equity Distribution Agreement,
the Escrow Agreement, and the Registration Rights Agreement, will be a valid and binding agreement of the
Company, enforceable in accordance with its respective terms, except to the extent that (a) the enforceability
hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws from time
to time in effect and affecting the rights of creditors generally, (b) the enforceability hereof or thereof is
subject to general principles of equity or (c) the indemnification provisions hereof or thereof may be held to be
in violation of public policy. The Securities to be issued pursuant to the transactions contemplated by this
Agreement and the Standby Equity Distribution Agreement have been duly authorized and, when issued and paid for
in accordance with this Agreement, the Standby Equity Distribution Agreement and the certificates/instruments
representing such Securities, will be valid and binding obligations of the Company, enforceable in accordance
with their respective terms, except to the extent that (1) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect and affecting the
rights of creditors generally, and (2) the enforceability thereof is subject to general principles of equity.
All corporate action required to be taken for the authorization, issuance and sale of the Securities has been
duly and validly taken by the Company.
(vii) The Company has a duly authorized, issued and outstanding capitalization as set forth herein and in the
Standby Equity Distribution Agreement. The Company is not a party to or bound by any instrument, agreement or
other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities,
except for this Agreement, the agreements described herein and as described in the Standby Equity Distribution
Agreement, dated the date hereof and the agreements described therein. All issued and outstanding securities of
the Company, have been duly authorized and validly issued and are fully paid and non-assessable; the holders
thereof have no rights of rescission or preemptive rights with respect thereto and are not subject to personal
liability solely by reason of being security holders; and none of such securities were issued in violation of the
preemptive rights of any holders of any security of the Company.
(viii) The Common Stock to be issued in accordance with this Agreement and the Standby Equity Distribution
Agreement has been duly authorized and, when issued and paid for in accordance with this Agreement, the Standby
Equity Distribution Agreement and the Compensation Debenture, the certificates/instruments representing such
Common Stock will be validly issued, fully-paid and non-assessable; the holders thereof will not be subject to
personal liability solely by reason of being such holders; such Securities are not and will not be subject to the
preemptive rights of any holder of any security of the Company.
(ix) The Company has good and marketable title to, or valid and enforceable leasehold estates in, all items
of real and personal property necessary to conduct its business (including, without limitation, any real or
personal property stated in the Offering Materials to be owned or leased by the Company), free and clear of all
liens, encumbrances, claims, security interests and defects of any material nature whatsoever, other than those
set forth in the Offering Materials and liens for taxes not yet due and payable.
(x) There is no litigation or governmental proceeding pending or, to the best of the Company's knowledge,
threatened against, or involving the properties or business of the Company, except as set forth in the Offering
Materials.
(xi) The Company has been duly organized and is validly existing as a corporation in good standing under the
laws of the State of Colorado. Except as set forth in the Offering Materials, the Company does not own or
control, directly or indirectly, an interest in any other corporation, partnership, trust, joint venture or other
business entity. The Company is duly qualified or licensed and in good standing as a foreign corporation in each
jurisdiction in which the character of its operations requires such qualification or licensing and where failure
to so qualify would have a material adverse effect on the Company. The Company has all requisite corporate power
and authority, and all material and necessary authorizations, approvals, orders, licenses, certificates and
permits of and from all governmental regulatory officials and bodies (domestic and foreign) to conduct its
businesses (and proposed business) as described in the Offering Materials. Any disclosures in the Offering
Materials concerning the effects of foreign, federal, state and local regulation on the Company's businesses as
currently conducted and as contemplated are correct in all material respects and do not omit to state a material
fact. The Company has all corporate power and authority to enter into this Agreement, the Standby Equity
Distribution Agreement, the Registration Rights Agreement, and the Escrow Agreement, to carry out the provisions
and conditions hereof and thereof, and all consents, authorizations, approvals and orders required in connection
herewith and therewith have been obtained. No consent, authorization or order of, and no filing with, any court,
government agency or other body is required by the Company for the issuance of the Securities or execution and
delivery of the Offering Materials except for applicable federal and state securities laws. The Company, since
its inception, has not incurred any liability arising under or as a result of the application of any of the
provisions of the 1933 Act, the 1934 Act or the Rules and Regulations.
(xii) There has been no material adverse change in the condition or prospects of the Company, financial or
otherwise, from the latest dates as of which such condition or prospects, respectively, are set forth in the
Offering Materials, and the outstanding debt, the property and the business of the Company conform in all
material respects to the descriptions thereof contained in the Offering Materials.
(xiii) Except as set forth in the Offering Materials, the Company is not in breach of, or in default under, any
term or provision of any material indenture, mortgage, deed of trust, lease, note, loan or Standby Equity
Distribution Agreement or any other material agreement or instrument evidencing an obligation for borrowed money,
or any other material agreement or instrument to which it is a party or by which it or any of its properties may
be bound or affected. The Company is not in violation of any provision of its charter or by-laws or in violation
of any franchise, license, permit, judgment, decree or order, or in violation of any material statute, rule or
regulation. Neither the execution and delivery of the Offering Materials nor the issuance and sale or delivery
of the Securities, nor the consummation of any of the transactions contemplated in the Offering Materials nor the
compliance by the Company with the terms and provisions hereof or thereof, has conflicted with or will conflict
with, or has resulted in or will result in a breach of, any of the terms and provisions of, or has constituted or
will constitute a default under, or has resulted in or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or pursuant to the terms of any indenture,
mortgage, deed of trust, note, loan or any other agreement or instrument evidencing an obligation for borrowed
money, or any other agreement or instrument to which the Company may be bound or to which any of the property or
assets of the Company is subject except (a) where such default, lien, charge or encumbrance would not have a
material adverse effect on the Company and (b) as described in the Offering Materials; nor will such action
result in any violation of the provisions of the charter or the by-laws of the Company or, assuming the due
performance by the Placement Agent of its obligations hereunder, any material statute or any material order, rule
or regulation applicable to the Company of any court or of any foreign, federal, state or other regulatory
authority or other government body having jurisdiction over the Company.
(xiv) Subsequent to the dates as of which information is given in the Offering Materials, and except as may
otherwise be indicated or contemplated herein or therein and the securities offered pursuant to the Securities
Purchase Agreement dated the date hereof, the Company has not (a) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, or (b) entered into any transaction other than in the
ordinary course of business, or (c) declared or paid any dividend or made any other distribution on or in respect
of its capital stock. Except as described in the Offering Materials, the Company has no outstanding obligations
to any officer or director of the Company.
(xv) There are no claims for services in the nature of a finder's or origination fee with respect to the sale
of the Common Stock or any other arrangements, agreements or understandings that may affect the Placement Agent's
compensation, as determined by the National Association of Securities Dealers, Inc.
(xvi) The Company owns or possesses, free and clear of all liens or encumbrances and rights thereto or therein
by third parties, the requisite licenses or other rights to use all trademarks, service marks, copyrights,
service names, trade names, patents, patent applications and licenses necessary to conduct its business
(including, without limitation, any such licenses or rights described in the Offering Materials as being owned or
possessed by the Company) and, except as set forth in the Offering Materials, there is no claim or action by any
person pertaining to, or proceeding, pending or threatened, which challenges the exclusive rights of the Company
with respect to any trademarks, service marks, copyrights, service names, trade names, patents, patent
applications and licenses used in the conduct of the Company's businesses (including, without limitation, any
such licenses or rights described in the Offering Materials as being owned or possessed by the Company) except
any claim or action that would not have a material adverse effect on the Company; the Company's current products,
services or processes do not infringe or will not infringe on the patents currently held by any third party.
(xvii) Except as described in the Offering Materials, the Company is not under any obligation to pay royalties
or fees of any kind whatsoever to any third party with respect to any trademarks, service marks, copyrights,
service names, trade names, patents, patent applications, licenses or technology it has developed, uses, employs
or intends to use or employ, other than to their respective licensors.
(xviii) Subject to the performance by the Placement Agent of its obligations hereunder the offer and sale of the
Securities complies, and will continue to comply, in all material respects with the requirements of Rule 506 of
Regulation D promulgated by the SEC pursuant to the 1933 Act and any other applicable federal and state laws,
rules, regulations and executive orders. Neither the Offering Materials nor any amendment or supplement thereto
nor any documents prepared by the Company in connection with the Offering will contain 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. All statements of
material facts in the Offering Materials are true and correct as of the date of the Offering Materials.
(xix) All material taxes which are due and payable from the Company have been paid in full or adequate
provision has been made for such taxes on the books of the Company, except for those taxes disputed in good faith
by the Company
(xx) None of the Company nor any of its officers, directors, employees or agents, nor any other person acting
on behalf of the Company, has, directly or indirectly, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary course of business) to any customer, supplier,
employee or agent of a customer or supplier, or official or employee of any governmental agency or
instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who is or may be in a position to help or hinder the business of the Company (or
assist it in connection with any actual or proposed transaction) which (A) might subject the Company to any
damage or penalty in any civil, criminal or governmental litigation or proceeding, or (B) if not given in the
past, might have had a materially adverse effect on the assets, business or operations of the Company as
reflected in any of the financial statements contained in the Offering Materials, or (C) if not continued in the
future, might adversely affect the assets, business, operations or prospects of the Company in the future.
Representations, Warranties and Covenants of the Investor.
The Investor represents, warrants and covenants as follows:
(xxi) The Investor has the necessary power to enter into this Agreement and to consummate the transactions
contemplated hereby.
(xxii) The execution and delivery by the Investor of this Agreement and the consummation of the transactions
contemplated herein will not result in any violation of, or be in conflict with, or constitute a default under,
any agreement or instrument to which the Investor is a party or by which the Investor or its properties are
bound, or any judgment, decree, order or, to the Investor's knowledge, any statute, rule or regulation applicable
to the Investor. This Agreement when executed and delivered by the Investor, will constitute the legal, valid
and binding obligations of the Investor, enforceable in accordance with their respective terms, except to the
extent that (a) the enforceability hereof or thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect and affecting the rights of creditors generally, (b) the
enforceability hereof or thereof is subject to general principles of equity, or (c) the indemnification
provisions hereof or thereof may be held to be in violation of public policy.
(xxiii) The Investor will promptly forward copies of any and all due diligence questionnaires compiled by the
Investor to the Placement Agent.
(xxiv) The Investor is an Accredited Investor (as defined under the 1933 Act).
(xxv) The Investor is acquiring the Securities for the Inventor's own account as principal, not as a nominee
or agent, for investment purposes only, and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part and no other person has a direct or indirect beneficial interest in such Securities.
Further, the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with respect to any of the Securities.
(xxvi) The Investor acknowledges the Investor's understanding that the offering and sale of the Securities is
intended to be exempt from registration under the 1933 Act by virtue of Section 3(b) of the 1933 Act and the
provisions of Regulation D promulgated thereunder ("Regulation D"). In furtherance thereof, the Investor
represents and warrants as follows:
The Investor has the financial ability to bear the economic risk of the
Investor's investment, has adequate means for providing for the Inventor's current needs and personal
contingencies and has no need for liquidity with respect to the Investor's investment in the Company; and
The Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the prospective investment. The Inventor
also represents it has not been organized for the purpose of acquiring the Securities.
(xxvii) The Investor has been given the opportunity for a reasonable time prior to the date hereof to ask
questions of, and receive answers from, the Company or its representatives concerning the terms and conditions of
the Offering, and other matters pertaining to this investment, and has been given the opportunity for a
reasonable time prior to the date hereof to obtain such additional information in connection with the Company in
order for the Investor to evaluate the merits and risks of purchase of the Securities, to the extent the Company
possesses such information or can acquire it without unreasonable effort or expense. The Investor is not relying
on the Placement Agent or any of its affiliates with respect to the accuracy or completeness of the Offering
Materials or for any economic considerations involved in this investment.
Certain Covenants and Agreements of the Company.
The Company covenants and agrees at its expense and without any expense to the Placement Agent as
follows:
To advise the Placement Agent and the Investor of any material adverse change in the Company's
financial condition, prospects or business or of any development materially affecting the Company or rendering
untrue or misleading any material statement in the Offering Materials occurring at any time as soon as the
Company is either informed or becomes aware thereof.
To use its commercially reasonable efforts to cause the Common Stock issuable in
connection with the Standby Equity Distribution Agreement to be qualified or registered for sale on terms
consistent with those stated in the Registration Rights Agreement and under the securities laws of such
jurisdictions as the Placement Agent and the Investor shall reasonably request. Qualification, registration and
exemption charges and fees shall be at the sole cost and expense of the Company.
Upon written request, to provide and continue to provide the Placement Agent and the
Investor copies of all quarterly financial statements and audited annual financial statements prepared by or on
behalf of the Company, other reports prepared by or on behalf of the Company for public disclosure and all
documents delivered to the Company's stockholders.
To deliver, during the registration period of the Standby Equity Distribution
Agreement, to the Investor upon the Investor's request, within forty five (45) days, a statement of its income
for each such quarterly period, and its balance sheet and a statement of changes in stockholders' equity as of
the end of such quarterly period, all in reasonable detail, certified by its principal financial or accounting
officer; (ii) within ninety (90) days after the close of each fiscal year, its balance sheet as of the close of
such fiscal year, together with a statement of income, a statement of changes in stockholders' equity and a
statement of cash flow for such fiscal year, such balance sheet, statement of income, statement of changes in
stockholders' equity and statement of cash flow to be in reasonable detail and accompanied by a copy of the
certificate or report thereon of independent auditors if audited financial statements are prepared; and (iii) a
copy of all documents, reports and information furnished to its stockholders at the time that such documents,
reports and information are furnished to its stockholders.
To comply with the terms of the Offering Materials.
To ensure that any transactions between or among the Company, or any of its officers,
directors and affiliates be on terms and conditions that are no less favorable to the Company, than the terms and
conditions that would be available in an "arm's length" transaction with an independent third party.
Indemnification and Limitation of Liability.
The Company hereby agrees that it will indemnify and hold the Placement Agent and each officer,
director, shareholder, employee or representative of the Placement Agent and each person controlling, controlled
by or under common control with the Placement Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act or the SEC's Rules and Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any and all reasonable legal fees and other
expenses and disbursements incurred in connection with investigating, preparing to defend or defending any
action, suit or proceeding, including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any action, suit or proceeding, including
any inquiry, investigation or pretrial proceeding such as a deposition) to which the Placement Agent or such
indemnified person of the Placement Agent may become subject under the 1933 Act, the 1934 Act, the Rules and
Regulations, or any other federal or state law or regulation, common law or otherwise, arising out of or based
upon (i) any untrue statement or alleged untrue statement of a material fact contained in (a) Section 4 of this
Agreement, (b) the Offering Materials (except those written statements relating to the Placement Agent given by
the Placement Agent for inclusion therein), (c) any application or other document or written communication
executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in
order to qualify the Common Stock under the securities laws thereof, or any state securities commission or
agency; (ii) the omission or alleged omission from documents described in clauses (a), (b) or (c) above of a
material fact required to be stated therein or necessary to make the statements therein not misleading; or (iii)
the breach of any representation, warranty, covenant or agreement made by the Company in this Agreement. The
Company further agrees that upon demand by an indemnified person, at any time or from time to time, it will
promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and
reasonably paid by the indemnified person as to which the Company has indemnified such person pursuant hereto.
Notwithstanding the foregoing provisions of this Paragraph 7(A), any such payment or reimbursement by the Company
of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment
by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against
the Placement Agent or such indemnified person based upon specific finding of fact that the Placement Agent or
such indemnified person's gross negligence or willful misfeasance will be promptly repaid to the Company.
The Placement Agent hereby agrees that it will indemnify and hold the Company and each
officer, director, shareholder, employee or representative of the Company, and each person controlling,
controlled by or under common control with the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act or the Rules and Regulations, harmless from and against any and all loss, claim,
damage, liability, cost or expense whatsoever (including, but not limited to, any and all reasonable legal fees
and other expenses and disbursements incurred in connection with investigating, preparing to defend or defending
any action, suit or proceeding, including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any action, suit or proceeding, including
any inquiry, investigation or pretrial proceeding such as a deposition) to which the Company or such indemnified
person of the Company may become subject under the 1933 Act, the 1934 Act, the Rules and Regulations, or any
other federal or state law or regulation, common law or otherwise, arising out of or based upon (i) the material
breach of any representation, warranty, covenant or agreement made by the Placement Agent in this Agreement, or
(ii) any false or misleading information provided to the Company in writing by one of the Placement Agent's
indemnified persons specifically for inclusion in the Offering Materials.
The Investor hereby agrees that it will indemnify and hold the Placement Agent and
each officer, director, shareholder, employee or representative of the Placement Agent, and each person
controlling, controlled by or under common control with the Placement Agent within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act or the Rules and Regulations, harmless from and against any and all
loss, claim, damage, liability, cost or expense whatsoever (including, but not limited to, any and all reasonable
legal fees and other expenses and disbursements incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or investigation, commenced or threatened, or any
claim whatsoever or in appearing or preparing for appearance as a witness in any action, suit or proceeding,
including any inquiry, investigation or pretrial proceeding such as a deposition) to which the Placement Agent or
such indemnified person of the Placement Agent may become subject under the 1933 Act, the 1934 Act, the Rules and
Regulations, or any other federal or state law or regulation, common law or otherwise, arising out of or based
upon (i) the conduct of the Investor or its officers, employees or representatives in its acting as the Investor
for the Offering, (ii) the material breach of any representation, warranty, covenant or agreement made by the
Investor in the Offering Materials, or (iii) any false or misleading information provided to the Placement Agent
by one of the Investor's indemnified persons.
The Placement Agent hereby agrees that it will indemnify and hold the Investor and
each officer, director, shareholder, employee or representative of the Investor, and each person controlling,
controlled by or under common control with the Investor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act or the Rules and Regulations, harmless from and against any and all loss, claim,
damage, liability, cost or expense whatsoever (including, but not limited to, any and all reasonable legal fees
and other expenses and disbursements incurred in connection with investigating, preparing to defend or defending
any action, suit or proceeding, including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any action, suit or proceeding, including
any inquiry, investigation or pretrial proceeding such as a deposition) to which the Investor or such indemnified
person of the Investor may become subject under the 1933 Act, the 1934 Act, the Rules and Regulations, or any
other federal or state law or regulation, common law or otherwise, arising out of or based upon the material
breach of any representation, warranty, covenant or agreement made by the Placement Agent in this Agreement.
Promptly after receipt by an indemnified party of notice of commencement of any action
covered by Section 7(A), (B), (C) or (D), the party to be indemnified shall, within five (5) business days,
notify the indemnifying party of the commencement thereof; the omission by one (1) indemnified party to so notify
the indemnifying party shall not relieve the indemnifying party of its obligation to indemnify any other
indemnified party that has given such notice and shall not relieve the indemnifying party of any liability
outside of this indemnification if not materially prejudiced thereby. In the event that any action is brought
against the indemnified party, the indemnifying party will be entitled to participate therein and, to the extent
it may desire, to assume and control the defense thereof with counsel chosen by it which is reasonably acceptable
to the indemnified party. After notice from the indemnifying party to such indemnified party of its election to
so assume the defense thereof, the indemnifying party will not be liable to such indemnified party under such
Section 7(A), (B), (C), or (D) for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, but the indemnified party may, at its own expense, participate in such
defense by counsel chosen by it, without, however, impairing the indemnifying party's control of the defense.
Subject to the proviso of this sentence and notwithstanding any other statement to the contrary contained herein,
the indemnified party or parties shall have the right to choose its or their own counsel and control the defense
of any action, all at the expense of the indemnifying party if (i) the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense of such action at the expense of
the indemnifying party, or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to
such indemnified party to have charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional to those available to one or all
of the indemnifying parties (in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of which events such fees and
expenses of one additional counsel shall be borne by the indemnifying party; provided, however, that the
indemnifying party shall not, in connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstance, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified
parties. No settlement of any action or proceeding against an indemnified party shall be made without the
consent of the indemnifying party.
In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in Section 7(A) or 7(B) is due in accordance with its terms but is for any reason
held by a court to be unavailable on grounds of policy or otherwise, the Company and the Placement Agent shall
contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with the investigation or defense of same) which the other may incur in such proportion so
that the Placement Agent shall be responsible for such percent of the aggregate of such losses, claims, damages
and liabilities as shall equal the percentage of the gross proceeds paid to the Placement Agent and the Company
shall be responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(F), any person controlling,
controlled by or under common control with the Placement Agent, or any partner, director, officer, employee,
representative or any agent of any thereof, shall have the same rights to contribution as the Placement Agent and
each person controlling, controlled by or under common control with the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and each officer of the Company and each director of the Company
shall have the same rights to contribution as the Company. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which
a claim for contribution may be made against the other party under this Section 7(D), notify such party from whom
contribution may be sought, but the omission to so notify such party shall not relieve the party from whom
contribution may be sought from any obligation they may have hereunder or otherwise if the party from whom
contribution may be sought is not materially prejudiced thereby.
The indemnity and contribution agreements contained in this Section 7 shall remain
operative and in full force and effect regardless of any investigation made by or on behalf of any indemnified
person or any termination of this Agreement.
The Company hereby waives, to the fullest extent permitted by law, any right to or
claim of any punitive, exemplary, incidental, indirect, special, consequential or other damages (including,
without limitation, loss of profits) against the Placement Agent and each officer, director, shareholder,
employee or representative of the placement agent and each person controlling, controlled by or under common
control with the Placement Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
or the Rules and Regulations arising out of any cause whatsoever (whether such cause be based in contract,
negligence, strict liability, other tort or otherwise). Notwithstanding anything to the contrary contained
herein, the aggregate liability of the Placement Agent and each officer, director, shareholder, employee or
representative of the Placement Agent and each person controlling, controlled by or under common control with the
Placement Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations shall not exceed the compensation received by the Placement Agent pursuant to Section 2 hereof. This
limitation of liability shall apply regardless of the cause of action, whether contract, tort (including, without
limitation, negligence) or breach of statute or any other legal or equitable obligation.
Payment of Expenses.
The Company hereby agrees to bear all of the expenses in connection with the Offering, including, but
not limited to the following: filing fees, printing and duplicating costs, advertisements, postage and mailing
expenses with respect to the transmission of Offering Materials, registrar and transfer agent fees, escrow agent
fees and expenses, fees of the Company's counsel and accountants, issue and transfer taxes, if any.
Conditions of Closing.
The Closing shall be held at the offices of the Investor or its counsel. The obligations of the
Placement Agent hereunder shall be subject to the continuing accuracy of the representations and warranties of
the Company and the Investor herein as of the date hereof and as of the date of closing (the "Closing Date") with
respect to the Company or the Investor, as the case may be, as if it had been made on and as of such Closing
Date; the accuracy on and as of the Closing Date of the statements of the officers of the Company made pursuant
to the provisions hereof; and the performance by the Company and the Investor on and as of the Closing Date of
its covenants and obligations hereunder and to the following further conditions:
Upon the effectiveness of a registration statement covering the Standby Equity Distribution
Agreement, the Investor and the Placement Agent shall receive an opinion of Counsel to the Company, dated as of
the date thereof, which opinion shall be in form and substance reasonably satisfactory to the Investor, their
counsel and the Placement Agent.
At or prior to the Closing, the Investor and the Placement Agent shall have been
furnished such documents, certificates and opinions as it may reasonably require for the purpose of enabling them
to review or pass upon the matters referred to in this Agreement and the Offering Materials, or in order to
evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions
herein contained.
At and prior to the Closing, (i) there shall have been no material adverse change nor
development involving a prospective change in the condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such condition is set forth in the Offering
Materials; (ii) there shall have been no transaction, not in the ordinary course of business except the
transactions pursuant to the Securities Purchase Agreement entered into by the Company on the date hereof which
has not been disclosed in the Offering Materials or to the Placement Agent in writing; (iii) except as set forth
in the Offering Materials, the Company shall not be in default under any provision of any instrument relating to
any outstanding indebtedness for which a waiver or extension has not been otherwise received; (iv) except as set
forth in the Offering Materials, the Company shall not have issued any securities (other than those to be issued
as provided in the Offering Materials) or declared or paid any dividend or made any distribution of its capital
stock of any class and there shall not have been any change in the indebtedness (long or short term) or
liabilities or obligations of the Company (contingent or otherwise) and trade payable debt; (v) no material
amount of the assets of the Company shall have been pledged or mortgaged, except as indicated in the Offering
Materials; and (v) no action, suit or proceeding, at law or in equity, against the Company or affecting any of
its properties or businesses shall be pending or threatened before or by any court or federal or state
commission, board or other administrative agency, domestic or foreign, wherein an unfavorable decision, ruling or
finding could materially adversely affect the businesses, prospects or financial condition or income of the
Company, except as set forth in the Offering Materials.
If requested at Closing the Investor and the Placement Agent shall receive a
certificate of the Company signed by an executive officer and chief financial officer, dated as of the applicable
Closing, to the effect that the conditions set forth in subparagraph (C) above have been satisfied and that, as
of the applicable closing, the representations and warranties of the Company set forth herein are true and
correct.
The Placement Agent shall have no obligation to insure that (x) any check, note, draft
or other means of payment for the Common Stock will be honored, paid or enforceable against the Investor in
accordance with its terms, or (y) subject to the performance of the Placement Agent's obligations and the
accuracy of the Placement Agent's representations and warranties hereunder, (1) the Offering is exempt from the
registration requirements of the 1933 Act or any applicable state "Blue Sky" law or (2) the Investor is an
Accredited Investor.
Termination.
This Agreement shall be co-terminus with, and terminate upon the same terms and conditions as those set
forth in, the Standby Equity Distribution Agreement. The rights of the Investor and the obligations of the
Company under the Registration Rights Agreement, and the rights of the Placement Agent and the obligations of the
Company shall survive the termination of this Agreement unabridged.
Miscellaneous.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all which shall be deemed to be one and the same instrument.
Any notice required or permitted to be given hereunder shall be given in writing and
shall be deemed effective when deposited in the United States mail, postage prepaid, or when received if
personally delivered or faxed (upon confirmation of receipt received by the sending party), addressed as follows
to such other address of which written notice is given to the others):
If to Placement Agent, to: Newbridge Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: Americana Publishing, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investor: Cornell Capital Partners, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Cornell Capital Partners, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
This Agreement shall be governed by and construed in all respects under the laws of the State of New
Jersey, without reference to its conflict of laws rules or principles. Any suit, action, proceeding or
litigation arising out of or relating to this Agreement shall be brought and prosecuted in such federal or state
court or courts located within the State of New Jersey as provided by law. The parties hereby irrevocably and
unconditionally consent to the jurisdiction of each such court or courts located within the State of New Jersey
and to service of process by registered or certified mail, return receipt requested, or by any other manner
provided by applicable law, and hereby irrevocably and unconditionally waive any right to claim that any suit,
action, proceeding or litigation so commenced has been commenced in an inconvenient forum.
This Agreement and the other agreements referenced herein contain the entire
understanding between the parties hereto and may not be modified or amended except by a writing duly signed by
the party against whom enforcement of the modification or amendment is sought.
If any provision of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect any other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
COMPANY:
AMERICANA PUBLISHING, INC.
By:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: CEO
PLACEMENT AGENT:
NEWBRIDGE SECURITIES CORPORATION
By:
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President
INVESTOR:
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager