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Gilder, Gagnon, ▇▇▇▇ & Company
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
PLACEMENT AGREEMENT
February 26, 1997
Mr. W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
This letter will set forth the terms and conditions upon which Gilder,
Gagnon, ▇▇▇▇ & Company will act as the exclusive placement agent for the sale
by W. ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (together, the "Sellers") of 1,250,000
and 250,000 shares (together, the "Shares"), respectively, of the common
stock, par value $.01 per share (the "Common Stock"), of Youth Services
International, Inc., a Maryland corporation (the "Company").
1. Appointment of Placement Agent. The Sellers hereby appoint Gilder,
Gagnon, ▇▇▇▇ & Company to act as their exclusive placement agent (the
"Placement Agent") for the Shares and acknowledge that the Placement Agent
shall have the exclusive right to assist the Sellers in the placement of the
Shares. The Placement Agent agrees to place the Shares to purchasers
identified by the Placement Agent on behalf of the Sellers on an "all-or-none"
basis at a per Share price equal to $15.125. The "Purchase Price", as used
herein, shall mean the product of (i) the number of Shares placed by the
Placement Agent and sold by the Sellers pursuant to this Agreement and (ii)
the per Share price.
In placing the Shares pursuant to this Agreement, the Placement
Agent shall act solely as agent for the Sellers and not as principal, and the
Placement Agent shall not have any obligation to purchase, as principal,
Shares from the Sellers under any circumstances.
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The Sellers and the Placement Agent agree that any Shares the
placement of which the Placement Agent arranges shall be placed by the
Placement Agent in reliance upon the representations, warranties, covenants
and agreement of the Sellers contained herein and on the terms and conditions
and in the manner provided herein.
2. Representations and Warranties of the Sellers.
(a) Each Seller jointly and severally represents and warrants to,
and agrees with, the Placement Agent that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (Commission No. 333-21771), for
the registration of the Shares under the Securities Act of 1933, as amended
(the "Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof, including, without limitation, all filings of the Company
incorporated therein by reference, as amended at the time of effectiveness of
the registration statement, and including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
of the Rules and Regulations of the Commission under the Act (the
"Regulations"), is herein called the "Registration Statement" and the
prospectus, in the form first filed with the Commission pursuant to Rule
424(b) of the Regulations or filed as part of the Registration Statement at
the time of effectiveness if no Rule 424(b) filing is required, is herein
called the "Prospectus". The term "preliminary prospectus" as used herein
means a preliminary prospectus as described in Rule 430 of the Regulations.
Any reference herein to the Registration Statement, any preliminary prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on or before the effective date of the Registration Statement, the date
of such preliminary prospectus or the date of the Prospectus, as the case may
be, and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include (A) the filing of any
document under the Exchange Act after the effective date of the Registration
Statement, the date of such preliminary prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by reference and
(B) any such document so filed.
(ii) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the
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Regulations, when any supplement to or amendment of the Prospectus is filed
with the Commission, when any document filed under the Exchange Act is filed
and at the Closing Date (as hereinafter defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Act and the Regulations and the Exchange Act and the respective rules and
regulations thereunder and does not or will not contain an untrue statement of
a material fact and does not or will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein (a) in the case of the Registration Statement, not misleading and
(b) in the case of the Prospectus, in light of the circumstances under which
they were made, not misleading. When any related preliminary prospectus was
first filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) of the Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Act and the
Regulations and the Exchange Act and the respective rules and regulations
thereunder and did not contain an untrue statement of a material fact and did
not omit to state any 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. No representation and warranty is made
in this subsection (ii), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of the Placement Agent expressly for use in connection
with the preparation thereof.
(iii) The Registration Statement has become effective under
the Act, and to the best of the knowledge of the Sellers, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Act or proceedings therefor initiated or threatened by the
Commission.
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as set forth in the Registration Statement and the Prospectus, there has been
no material adverse change or any development involving a prospective material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business, and since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, neither the
Company nor any of its
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subsidiaries has incurred or undertaken any liabilities or obligations, direct
or contingent, which are material to the Company and its subsidiaries taken as
a whole, except for liabilities or obligations which are reflected in the
Registration Statement and the Prospectus.
(v) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Sellers and this Agreement has
been duly and validly executed and delivered by the Sellers.
(vi) The Shares, when delivered and sold in accordance with
this Agreement, will be duly and validly issued and outstanding, fully paid
and nonassessable, and will not have been issued in violation of or be subject
to any preemptive rights.
(vii) The Company is in compliance in all material respects
with all the requirements of, and has made all required filings under, the
Act, the Regulations, the Exchange Act and the regulations promulgated
thereunder and the rules of The Nasdaq Stock Market.
(viii) The financial statements, including the notes thereto,
and supporting schedules included or incorporated by reference or deemed
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company as of the dates indicated
and the results of its operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(ix) The documents incorporated or deemed to be incorporated
by reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission under the Exchange Act, and, when read together with the other
information in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date, will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(x) The Common Stock is, and upon the delivery and sale of the
Shares, the Shares will be, listed on The Nasdaq National Market System.
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(xi) The Board of Directors of the Company has approved
resolutions exempting from the Maryland General Corporation Law any business
combination with the Placement Agent, its existing or future affiliates or any
"group" (within the meaning of Section 13(d)(3) of the Exchange Act) that may
become "interested stockholders" of the Company or any existing or future
affiliate of any of the foregoing, and said resolutions (A) have not been,
and, on the Closing Date, will not have been, modified or rescinded since
their adoption, and (B) are, and on the Closing Date will be, in full force
and effect.
(b) Each Seller, severally and not jointly, represents and warrants
to, and agrees with, the Placement Agent that:
(i) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach by such Seller of, or constitute a default by such Seller under, any
material indenture, deed of trust, contract or other material agreement or
instrument or any decree, judgment or order to which such Seller is a party or
by which such Seller may be bound.
(ii) Each Seller has and will have, at the Closing Date, good
and marketable title to the Shares to be sold by such Seller hereunder, free
and clear of any pledge, lien, security interest, encumbrance, claim or
equity, created by or arising through the Seller other than pursuant to this
Agreement; such Seller has full right, power and authority to sell, transfer
and deliver the Shares to be sold by such Seller hereunder; and upon delivery
of the Shares to be sold by such Seller hereunder and payment of the purchase
price therefor as herein contemplated, each party to whom such Shares were
sold will receive good and marketable title to the Shares purchased by it from
such Seller, free and clear of any pledge, lien, security interest,
encumbrance, claim or equity.
(iii) All authorizations, approvals and consents necessary for
the execution and delivery by each Seller of this Agreement and the sale and
delivery of the Shares by such Seller (other than, at the time of the
execution hereof, such authorizations, approvals or consents as may be
necessary under state securities laws), have been obtained and are in full
force and effect; each Seller has the full right, power and authority to
execute and deliver this Agreement and to sell, transfer and deliver the
Shares to be sold by such Seller.
(iv) Each Seller has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or exercise of the Shares.
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3. Purchase, Sale and Delivery of the Shares; Payment of Commissions.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Sellers agree to deliver the Shares to the Placement Agent for
the account of any purchaser and the Placement Agent agrees to deliver to the
Sellers on behalf of the purchasers their proportionate share of the Purchase
Price. The term "proportionate share", as used herein, shall mean, with
respect to each Seller, the proportion of Shares owned by such Seller.
(b) Payment of the Purchase Price for, and delivery of certificates
for, the Shares shall be made at the offices of Rosenman & Colin, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Placement Agent and the Sellers, at 10:00 A.M. on March 14, 1997
or such other time not later than three business days after such date as shall
be agreed upon by the Sellers and the Placement Agent (such time and date of
payment and delivery being herein called the "Closing Date"). Payment of the
Purchase Price shall be made by the Placement Agent to the Sellers by wire
transfer in immediately available funds, against delivery to the Placement
Agent for the respective accounts of the purchasers of certificates for the
Shares to be purchased by the purchasers identified by the Placement Agent.
Certificates for the Shares shall be delivered to the Placement Agent on or
prior to the Closing Date accompanied by a stock power duly endorsed in blank
and with stock transfer stamps affixed and cancelled at the Seller's expense.
(c) As compensation for the services of the Placement Agent
provided to the Sellers hereunder, the Sellers shall pay the Placement Agent a
commission equal to $0.125 for each Share sold, or an aggregate of $187,500 if
all of the Shares are sold. Each of the Sellers shall pay their proportionate
share of such commission to the Placement Agent on the Closing Date by, at the
Placement Agent's option, (i) certified or official bank checks drawn in New
York Clearing House funds or similar next day funds payable to the order of
the Placement Agent or (ii) by the Placement Agent withholding such amount
from the Purchase Price.
4. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, each of the
Sellers hereby agrees to pay their proportionate share of all costs and
expenses incident to the performance of the obligations of the Sellers and the
Placement Agent hereunder, including those in connection with (i) preparing,
printing, duplicating, filing and distributing the Registration Statement, as
originally filed and all amendments thereof (including all exhibits thereto),
any preliminary prospectus, the Prospectus and any amendments or supplements
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thereto (including, without limitation, fees and expenses of the Company's
accountants (except, that, with respect to the accountant's letter to be
delivered pursuant to Section 5(d) herein, such fees and expenses shall be
borne solely by ▇▇. ▇▇▇▇▇▇▇ and the Company) and counsel), this Agreement and
all other documents related to the placement of the Shares, (ii) the issuance,
transfer and delivery of the Shares to the purchasers identified by the
Placement Agent, including any transfer or other taxes payable thereon, (iii)
the qualification of the Shares under state or foreign securities or Blue Sky
laws, including the costs of printing and mailing a preliminary and final
"Blue Sky Survey" and the fees of counsel for the Placement Agent and such
counsel's disbursements in relation thereto, (iv) listing the Shares on The
Nasdaq National Market, (v) filing fees of the Commission and the National
Association of Securities Dealers, Inc., (vi) the cost of printing
certificates representing the Shares and (vii) the cost and charges of any
transfer agent or registrar.
5. Conditions of Placement Agent's Obligations. The obligations of the
Placement Agent to place the Shares and pay the Purchase Price, as provided
herein, shall be subject to the accuracy of the representations and warranties
of the Sellers herein contained, as of the date hereof and as of the Closing
Date, to the absence from any certificates, opinions, written statements or
letters furnished to the Placement Agent pursuant to this Section 5 of any
misstatement or omission, to the performance by the Sellers of their
obligations hereunder, and to the following additional conditions:
(a) At or prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date the Placement Agent shall have received the
opinion of either Piper & Marbury or Miles & Stockbridge dated the Closing
Date and addressed to the Placement Agent, to the effect that:
(i) All of the Shares are owned of record by the Sellers; and
(ii) This Agreement has been duly authorized and validly
executed by the Sellers and is the legally valid and binding
obligation of the Sellers, enforceable against the Sellers in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application relating to or affecting the enforcement of creditors'
rights and the application of equitable principles whether in a suit
at law or in equity.
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(c) At the Closing Date the Placement Agent shall have received a
certificate of the Sellers, dated the Closing Date, to the effect that, (i) as
of the date hereof and as of the Closing Date the representations and
warranties of the Sellers set forth in Section 2 hereof are accurate, (ii) as
of the Closing Date the obligations of the Sellers to be performed hereunder
on or prior thereto have been duly performed and (iii) subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and its subsidiaries have not
sustained any material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse change,
or any development involving a material adverse change, in the business
prospects, properties, operations, condition (financial or otherwise), or
results of operations of the Company and its subsidiaries taken as a whole,
except in each case as described in or contemplated by the Prospectus.
(d) Within ten business days of the date of this Agreement, the
Placement Agent shall have received from the accountants for the Company a
letter addressed to the Placement Agent in form and substance reasonably
satisfactory to the Placement Agent with respect to the financial statements
and certain financial information contained in or incorporated by reference in
the Registration Statement and the Prospectus.
(e) Prior to the Closing Date the Sellers shall have furnished to
the Placement Agent, upon the reasonable request of the Placement Agent, such
further information, certificates and documents which are necessary to
consummate the transactions contemplated hereby and are requested by a third
party.
(f) At the Closing Date, the Shares shall have been approved for
listing on The Nasdaq National Market upon notice of issuance and all
necessary approvals of the National Association of Securities Dealers, Inc.
shall have been received.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Placement Agent or to the Placement Agent's Counsel pursuant to this Section 5
shall not be in all material respects reasonably satisfactory in form and
substance to the Placement Agent and to the Placement Agent's Counsel, all
obligations of the Placement Agent hereunder may be cancelled by the Placement
Agent at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Sellers in writing, or by telephone, telex
or telegraph, confirmed in writing.
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6. Indemnification.
(a) The Sellers agree to indemnify and hold harmless the Placement
Agent, its directors, officer and employees, and each person, if any, who
controls the Placement Agent within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Sellers will not be liable in any such
case to the extent but only to the extent that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Placement Agent expressly for use
therein. This indemnity agreement will be in addition to any liability which
the Sellers may otherwise have including under this Agreement.
(b) The Placement Agent agrees to indemnify and hold harmless each
of the Sellers against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
several, to which they may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally filed
or any amendment thereof, or any related preliminary prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the 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 each case to the
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extent, but only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Placement Agent expressly for use therein; provided, however,
that in no case shall the Placement Agent be liable or responsible for any
amount in excess of the commissions received by the Placement Agent hereunder.
This indemnity will be in addition to any liability which the Placement Agent
may otherwise have including under this Agreement. The Sellers acknowledge
that the statements set forth under the caption "Plan of Distribution" in the
Prospectus constitute the only information furnished in writing by or on
behalf of the Placement Agent expressly for use in the Registration Statement
relating to the Shares as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment thereof
or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless (i) the employment
of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel 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 shall be
borne by the indemnifying parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any
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claim or action effected without its written consent; provided, however, that
such consent was not unreasonably withheld.
7. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Placement Agent and the Sellers
contained in this Agreement, including the agreements contained in Section 4
and the indemnity agreements contained in Section 6 shall remain operative and
in full force and effect regardless of any investigation made by or on behalf
of the Placement Agent or any controlling person thereof or by or on behalf of
the Sellers, and shall survive delivery of and payment for the Shares to and
by the Placement Agent. The representations contained in Section 2 and the
agreements contained in Sections 4, 6 and 8(c) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 8
hereof.
8. Termination.
(a) The Placement Agent shall have the right to terminate this
Agreement at any time after March 14, 1997 if the conditions set forth in
Section 5 shall not have been satisfied on or prior to March 14, 1997.
(b) Any notice of termination pursuant to this Section 8 shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to this Section
8, each of the Sellers will, subject to demand by the Placement Agent,
reimburse the Placement Agent such Seller's proportionate share of all
out-of-pocket expenses (including the fees and expenses of their counsel)
incurred by the Placement Agent in connection herewith.
9. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and shall be mailed,
delivered, or telexed or telegraphed and confirmed in writing, to the intended
recipient as set forth below:
If to the Placement Agent:
Gilder, Gagnon, ▇▇▇▇ & Company
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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with a copy to:
Rosenman & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to the Sellers:
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
10. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Placement Agent and the Sellers and the controlling
persons, directors, officers, employees and agents referred to in Section 6
and their respective successors and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its
capacity as such, of Shares from the Placement Agent.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
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If the foregoing correctly sets forth the understanding between the
Placement Agent and the Sellers, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
GILDER, GAGNON, ▇▇▇▇ & COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
Accepted as of the date first above written
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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