Exhibit 99.3
ROOMLINX, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: November 18, 2004
Newbridge Securities Corporation
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Ladies and Gentlemen:
The undersigned, Roomlinx, Inc., a Nevada 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:
1. 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
Five Million U.S. Dollars ($5,000,000) of the Company's common stock (the
"Commitment Amount"), par value US$.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 pursuant to the Standby Equity
Distribution Agreement are sometimes referred to hereinafter as the
"Securities." The Placement Agent shall not be obligated to sell any Securities.
2. 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 Investor pursuant to the
Registration Rights Agreement dated the date hereof.
3. Representations, Warranties and Covenants of the Placement Agent.
A. The Placement Agent represents, warrants and covenants as
follows:
(i) 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 its terms, except to the extent that (a) the enforceability
hereof 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 is subject to general principles of
equity, or (c) the indemnification provisions hereof 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.
(vi) The Placement Agent is an Accredited Investor
(as defined under the 1933 Act).
(vii) The Placement Agent is acquiring the Placement
Agent's Shares for the Placement Agent'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 shares.
Further, the Placement Agent 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.
(viii) The Placement Agent acknowledges the Placement
Agent's understanding that the offering and sale of the Placement Agent's Shares
is intended to be exempt from registration under the 1933 Act by virtue of
Section 3(b) or Section 4(2) of the 1933 Act and the provisions of Regulation D
promulgated thereunder ("Regulation D"). In furtherance thereof, the Placement
Agent represents and warrants as follows:
(a) The Placement Agent has the financial
ability to bear the economic risk of the Placement Agent's investment, has
adequate means for providing for the Placement Agent's current needs and
personal contingencies and has no need for liquidity with respect to the
Placement Agent's investment in the Company; and
(b) The Placement Agent 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.
(ix) The Placement Agent 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 issuance of the Placement Agent's Shares, 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 Placement Agent's Shares, to the extent the Company
possesses such information or can acquire it without unreasonable effort or
expense.
(x) The Placement Agent acknowledges that the
Placement Agent's Shares have not been registered under federal or state
securities law, that such shares may not be transferred in the absence of such
registration or an opinion of the Company's counsel that such transfer is exempt
from all applicable federal and state registration requirements and that the
certificates representing such shares will bear a restrictive legend reflecting
the restrictions described herein.
4. Representations and Warranties of the Company.
A. The Company represents and warrants as follows:
(i) The execution, delivery and performance of each
of this Agreement, the Standby Equity Distribution Agreement, the Escrow
Agreement, and the Registration Rights Agreement has 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.
(ii) The Company has a duly authorized, issued and
outstanding capitalization as set forth 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
and in 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.
(iii) 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 and
the Standby Equity Distribution Agreement, 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.
(iv) 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 or SEC Documents and liens for taxes not yet due
and payable.
(v) 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 or the SEC Documents.
(vi) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Nevada. Except as set forth in the Offering Materials or the SEC Documents,
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 or
the SEC Documents. 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. Except for such
approvals as shall be required in order to register the securities under federal
and state law in accordance with the Registration Rights Agreement, 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 actions required under 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.
(vii) 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.
(viii) Except as set forth in the Offering Materials
or the SEC Documents, 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 material
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 or (b) as
described in the Offering Materials or the SEC Documents.
(ix) Subsequent to the dates as of which information
is given in the most recent of the Offering Materials or SEC Documents, and
except as may otherwise be indicated or contemplated herein or therein, 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 or SEC Documents, the
Company has no outstanding obligations to any officer or director of the
Company.
(x) 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.
(xi) 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 or
SEC Documents, 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.
(xii) Except as described in the Offering Materials
or the SEC Documents, 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.
(xiii) Subject to the performance by the Placement
Agent of its obligations hereunder, the offer and sale of the Securities to the
Investor 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.
(xiv) 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
(xv) 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.
5. Representations, Warranties and Covenants of the Investor.
A. The Investor represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter
into this Agreement and to consummate the transactions contemplated hereby.
(ii) 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.
(iii) The Investor will promptly forward copies of
any and all due diligence questionnaires compiled by the Investor to the
Placement Agent.
(iv) The Investor is an Accredited Investor (as
defined under the 1933 Act).
(v) The Investor is acquiring the Securities under
the Standby Equity Distribution Agreement 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.
(vi) 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) or Section
4(2) of the 1933 Act and the provisions of Regulation D promulgated thereunder
("Regulation D"). In furtherance thereof, the Investor represents and warrants
as follows:
(a) 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
(b) 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.
(vii) 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.
6. 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:
A. 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.
B. 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.
C. 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.
D. 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.
E. To comply with the terms of the Offering Materials.
F. 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.
7. Indemnification and Limitation of Liability.
A. 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 promulgated thereunder (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) 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) or
(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 a specific finding of fact that the Placement Agent or such
indemnified person committed gross negligence or willful misfeasance will be
promptly repaid to the Company.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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.
H. 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.
8. 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, and issue and transfer taxes, if any.
9. 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 thereunder shall survive the termination of this
Agreement unabridged.
10. Miscellaneous.
A. 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.
B. 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: Roomlinx, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇, ext. 102
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investor: Cornell Capital Partners, LP
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Cornell Capital Partners, LP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Senior Vice-President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
C. 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.
D. 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.
E. 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:
ROOMLINX, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
PLACEMENT AGENT:
NEWBRIDGE SECURITIES CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President
INVESTOR:
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager