PTN MEDIA, INC.
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PLACEMENT AGENT AGREEMENT
Dated: August , ▇▇▇▇
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▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned, PTN Media, Inc. ("PTN" or the "Company"), proposes to
issue and sell to the public up to 400,000 shares ("Shares") of its Common
Stock, par value $.001 per share ("Common Stock").
This is to confirm the arrangements with you (the "Placement Agent"),
with respect to the sale of the Notes by the Placement Agent as non-exclusive
agent for PTN.
SECTION 1. Description of Shares. The Shares shall conform in all
material respects to the description thereof contained in the Registration
Statement of the Company with respect to the offering of the Shares, as filed
with the Securities and Exchange Commission (the "Registration Statement").
SECTION 2. Representations, Warranties and Covenants of PTN. PTN hereby
represents and warrants to and covenants and agrees with the Placement Agent as
follows:
(a) The Shares will conform to all statements with regard thereto
contained in the Registration Statement; the Shares at Closing shall have been
duly and validly authorized by proper corporate authority; and the Shares when
issued will be duly authorized, validly issued, fully paid and non-assessable.
(b) The execution and delivery by PTN of this Placement Agent Agreement
has been duly authorized by all necessary corporate action and this Placement
Agent Agreement is a valid, binding and legally enforceable obligation of PTN in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights now or hereafter in effect and to
general equitable principles and except that enforceability of the Placement
Agent's rights to indemnification or contribution as set forth herein may be
limited by applicable laws.
(c) The execution and delivery by PTN of this Placement Agent
Agreement, the consummation and performance of the transactions herein
contemplated, and compliance with the terms of this Placement Agent Agreement by
PTN will not conflict with, result in a breach of or constitute a material
default under any indenture, mortgage, deed of trust or other agreement or
instrument to which PTN is now a party or by which it or any of its assets or
properties is bound or the Certificate of Incorporation, as amended, or the
bylaws of PTN, in each case as amended, or any law, order, rule or regulation,
writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over PTN, or
any of its respective business or properties, to the extent that such conflict,
breach or default might have a material adverse effect on PTN, its business,
properties or condition (financial or otherwise) on a consolidated basis.
(d) All of the aforesaid representations, agreements and warranties
shall survive delivery of and payment for all or any part of the Shares.
SECTION 3. Issuance, Sale and Delivery of the Shares.
(a) PTN hereby appoints the Placement Agent as its non-exclusive agent,
until October 31, 1998 (which period may be extended for up to an additional 30
days upon the mutual consent of PTN and the Placement Agent), to sell the
Shares, and the Placement Agent, on the basis of the representations and
warranties herein contained but subject to the terms and conditions herein set
forth, accepts such appointment and agrees to use its best efforts to find
purchasers for the Shares. The price at which the Placement Agent shall sell the
Shares as agent for the Company, shall be at $5.00 per Share, in increments of
200 Shares, provided, that the Placement Agent and PTN may agree to accept
partial investment units.
(b) All checks for the purchase of Shares shall be made payable to
University Bank, and shall be accompanied by a duly executed signature page to
the Subscription Agreement in the form included as an exhibit to the
Registration Statement. Each such check and Subscription Agreement signature
page, when received by the Placement Agent, shall be immediately delivered to
such escrow agent, and in no event later than 12:00 noon of the business day
following receipt by the Placement Agent. Upon receipt thereof or on such
scheduled closing date as PTN may determine, PTN shall issue individual stock
certificates representing the Shares purchased and shall deliver the same to
each purchaser of Shares in exchange for a release of such purchaser's funds
from the escrow agent.
(c) As its entire compensation, the Placement Agent shall be entitled
to receive a Placement Agent's commission in an amount equal to ten percent
(10.0%) of the gross proceeds of the offering, such sum to be paid upon the
scheduled closing.
(d) The parties hereto represent that at the Issuance Date, the
representations and warranties herein contained, and the statements contained in
all certificates theretofore or simultaneously delivered by any party to another
pursuant to this Placement Agent Agreement, shall in all respects be true and
correct.
SECTION 4. Covenants of PTN. PTN covenants and agrees with the
Placement Agent that:
(a) PTN, at its own expense, will give and continue to give such
financial statements and other information to and as may be required by the
proper public bodies of the jurisdictions in which the Shares may be qualified.
(b) PTN will pay all fees, taxes (excluding any taxes on the income or
revenue of the holders of the Shares) and expenses incident to the original
issuance of the Shares and the fees and expenses of counsel and accountants for
PTN. PTN also shall pay promptly will pay all expenses relative to the
qualification of the Shares under the Blue Sky Laws of the jurisdictions in
which the Shares are offered. In addition, PTN agrees to pay all expenses
relating to preparing and printing the Registration Statement and related
documents.
SECTION 5. Indemnification. (a) PTN hereby agrees to indemnify and hold
harmless the Placement Agent and each person who controls the Placement Agent
within the meaning of Section 15 of the 1933 Act (collectively, the "Agent
Indemnified Parties") against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under such Act or any other statute or at common law and to reimburse such Agent
Indemnified Parties for any legal or other expense (including the cost of any
investigation and preparation) incurred by them in connection with any
litigation, whether or not resulting in any liability, but only insofar as such
losses, claims, liabilities and litigation arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact required to
be stated in the Registration Statement or necessary to make the statement
therein not misleading, or omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, or
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(ii) any breach by PTN of any representation, warranty or covenant contained
herein, provided however, that the indemnity provisions contained in this
subsection (a) shall not apply to (x) amounts paid in settlement of any such
litigation if such settlement is effected without the consent of PTN or (y) the
Placement Agent or any other Agent Indemnified Parties in respect of any such
losses, claims, damages, liabilities or actions (A) arising out of, or based
upon any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made in reliance upon
information furnished in writing to PTN by the Placement Agent or such Agent
Indemnified Parties or any other placement agent engaged by PTN specifically for
use in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto or (B) arising primarily and directly
from the willful misconduct or gross negligence of Placement Agent or any other
Agent Indemnified Party or any other placement agent engaged by PTN.
The Placement Agent agrees, within twenty (20) days after the receipt
by it of written notice of the commencement of any action against it or against
any other Agent Indemnified parties, in respect of which indemnity may be sought
from PTN on account of the indemnity provisions contained in this subsection
(a), to notify PTN in writing of the commencement thereof. The omission of the
Placement Agent to so notify PTN of any such action shall relieve PTN from any
liability which it may have to the Placement Agent or any other Agent
Indemnified Parties on account of the indemnity provisions contained in this
subsection (a), but shall not relieve PTN from any other liability which it may
have to the Placement Agent or other Agent Indemnified Parties. In case any such
action shall be brought against the Placement Agent or any other Agent
Indemnified Parties and the Placement Agent shall notify PTN of the commencement
thereof, PTN shall be entitled to participate in (and, to the extent that it
shall wish, to direct) the defense thereof at its own expense, but such defense
shall be conducted by counsel reasonably satisfactory to the Placement Agent or
such other Agent Indemnified Parties. PTN agrees to notify the Placement Agent
promptly of the commencement of any litigation or proceeding against it or in
connection with the issue and sale of any of its securities and to furnish to
the Placement Agent, at its request, copies of all pleadings therein and permit
the Placement Agent to be an observer therein and apprise the Placement Agent of
all developments therein, all at PTN's expense. References to PTN in this
Section shall include any successor to PTN by merger or otherwise.
(b) The Placement Agent agrees, in the same manner and to the same
extent as set forth in subsection (a)(i) above, to indemnify and hold harmless
PTN, its directors, officers and each person, if any, who controls PTN within
the meaning of Section 15 of the Shares (collectively, the "PTN Indemnified
Parties"), with respect to any statement in or omission from the Registration
Statement (as amended or as supplemented, if amended or supplemented as
aforesaid), if such statement or omission was made in reliance upon information
furnished in writing to PTN by the Placement Agent on its behalf, specifically
for use in connection with the preparation of the Registration Statement or any
such amendment thereof or supplement thereto. The Placement Agent shall not be
liable for amounts paid in settlement of any such litigation if such settlement
was effected without its consent. In case of commencement of any action in
respect of which indemnity may be sought from the Placement Agent on account of
the indemnity provisions contained in this subsection (b), each of the PTN
Indemnified Parties shall have the same obligation to notify the Placement Agent
as the Placement Agent has toward PTN in subsection (a) above, subject to the
same loss of indemnity in the event such notice is not given, and the Placement
Agent shall have the same right to participate in (and, to the extent that it
shall wish, to direct) the defense of such action at its own expense, but such
defense shall be conducted by counsel reasonably satisfactory to PTN. The
Placement Agent agrees to notify PTN promptly of the commencement of any
litigation or proceeding against it or against any such other PTN Indemnified
Parties, or of which it may be advised, in connection with the issue and sale of
the Shares and to furnish to PTN, at its request, copies of all pleadings
therein and permit PTN to be an observer therein and apprise it of all
developments therein, all at the Placement Agent's expense.
(c) The respective indemnity provisions between the Placement Agent and
PTN contained in subsections (a) and (b) above, and the representations and
warranties of PTN and the Placement Agent
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set forth in this Placement Agent Agreement, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Placement Agent or by or on behalf of any of the Agent Indemnified Parties or
PTN Indemnified Parties and shall survive the delivery of the Shares to be sold
in the offering contemplated hereby, and any successor of PTN, the Placement
Agent or any other Agent Indemnified Parties or PTN Indemnified Parties, as the
case may be, shall be entitled to the benefit of the respective indemnity
provisions.
(d) In order to provide for just and equitable contribution under the
1933 Act in any case in which (i) any person entitled to indemnification under
this Section 5 makes claim for indemnification pursuant hereto but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Act may be required on the part of any
such person in circumstances for which indemnification is provided under this
Section 5, then and in each such case, PTN and the Placement Agent shall
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after any contribution from others) in such proportion so that
the Placement Agent is responsible for an aggregate of seven and one-half
percent (7.5%) of the gross proceeds received by PTN on account of the sale of
Shares (being the amount of the Placement Agent's commission), and PTN is
responsible for the remaining portion; provided however, that in any such case,
no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Within ten (10) days after receipt by any party to this Placement Agent
Agreement (or its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in respect
thereof is to be made against another party (the "contributing party"), notify
the contributing party in writing of the commencement thereof, but the omission
so to notify the contributing party will not relieve it from any liability which
it may have to any other party other than for contribution hereunder. In case
any such action, suit or proceeding is brought against any party and such party
so notifies a contributing party or his or its representative of the
commencement thereof within the aforesaid ten (10) days, the contributing party
will be entitled to participate therein, with the notifying party and any other
contributing party similarly notified. Any such contributing party shall not be
liable to any party seeking contribution on account of any settlement of any
claim, action or proceeding effected by such party seeking contribution without
the written consent of such contributing party. The contribution provisions
contained in this Section 5 are in addition to any other rights or remedies
which either party hereto may have with respect to the other or hereunder.
SECTION 6. Effectiveness of Agreement. This Placement Agent Agreement
shall become effective as of the date hereof.
SECTION 7. Condition of the Placement Agent's Obligations. The
Placement Agent's obligation to act as the agent of PTN hereunder and the
Placement Agent's obligation to use its best efforts to find purchasers for the
Shares shall be subject to the accuracy, as of the Issuance Date, of the
representations and warranties on the part of PTN herein contained, to the
performance by PTN of all its agreements herein contained, and to the
fulfillment of or compliance by PTN with all covenants and conditions hereof.
SECTION 8. Termination.
(a) This Placement Agent Agreement may be terminated by PTN by notice
to the Placement Agent at any time before the effective date of the Registration
Statement.
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(b) This Placement Agent Agreement may be terminated by PTN by notice
to the Placement Agent in the event that Placement Agent shall have failed or
been unable to comply in any material respect with any of the terms, conditions
or provisions of this Placement Agent Agreement on its part to be performed,
complied with or fulfilled within the respective times herein provided for,
unless compliance therewith or performance or satisfaction thereof shall have
been expressed waived by PTN in writing.
(c) Any termination of this Placement Agent Agreement pursuant to this
Section shall be without liability of any character (including, but not limited
to, loss of anticipated profits or consequential damages) on the part of any
party hereto, except that PTN on the one hand and the Placement Agent on the
other, shall be obligated to pay, respectively, all losses, claims, damages or
liabilities, joint or several, under Section 5(a) in the case of PTN and Section
5(b) in the case of the Placement Agent.
SECTION 9. No Finders. PTN and the Placement Agent mutually represent
that they know of no person who rendered any service in connection with the
introduction of PTN to the Placement Agent and who is making a claim by anyone
for a "finder's fee" or similar type of fee in connection with the offering
which is the subject of this Placement Agent Agreement. Each party hereby
indemnifies the other against any such claims by any person known to it and not
known to the other party hereto, who shall claim to have rendered services in
connection with the introduction of PTN to the Placement Agent or to have such a
claim and who shall make a claim for a fee in connection therewith.
SECTION 10. Placement Agent's Representations and Warranties. The
Placement Agent represents and warrants to and agrees with PTN that:
(a) The Placement Agent is registered as a broker-dealer with the
Securities and Exchange Commission and the State of Delaware and is a member in
good standing of the National Association of Securities Dealers, Inc.
(b) The Placement Agent will not effect sales of the Shares in any
jurisdiction, unless it or its representative is duly licensed to effect sales
in such jurisdiction and the offer and sale of the Shares are registered or
exempt from registration in such jurisdiction, nor shall it make any statements
or representations inconsistent with the Registration Statement.
(c) There are no NASD disciplinary matters or investigations pending
against Placement Agent or any of its principals, directors, officers, members,
managers, partners or control persons.
SECTION 11. Notice. Except as otherwise expressly provided in this
Placement Agent Agreement, (a) whenever notice is required by the provisions of
this Placement Agent Agreement to be given to PTN, such notice shall be given in
writing, addressed to PTN at the address set forth in the Registration
Statement, with a copy to Law Offices of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., and (b)
whenever notice is required by the provisions of this Placement Agent Agreement
to be given to the Placement Agent, such notice shall be in writing addressed to
the Placement Agent at the address set forth above.
SECTION 12. Miscellaneous. This Placement Agent Agreement is made
solely for the benefit of the Placement Agent, PTN and any controlling person
referred to in Section 15 of the 1933 Act, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Placement Agent Agreement. The term "successor" or the term "successors
and assigns" as used in this Placement Agent Agreement shall not include any
purchaser, as such, of any of the Shares.
The validity, interpretation and construction of this Placement Agent
Agreement and of each part hereof will be governed by the local laws of the
State of Delaware.
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The headings in this Placement Agent Agreement are for reference only
and shall not limit or otherwise affect any of the terms or provisions hereof.
This Placement Agent Agreement represents the entire agreement between
the parties hereto and supersedes any and all prior writings or oral
communications, all of which are merged into this Placement Agent Agreement.
The provisions of this Placement Agent Agreement shall be deemed
severable, so that if any provision hereof shall be declared unlawful or
unenforceable, the remaining provisions hereof shall not be affected thereby and
shall remain in full force and effect.
This Placement Agent Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together will constitute one
and the same instrument.
Please confirm that the foregoing correctly sets forth the Placement
Agent Agreement between the Placement Agent and PTN Media, Inc.
Dated: August , 1998
PTN MEDIA, INC.
By: ________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, President
We hereby confirm as of the date hereof that the above letter sets
forth the agreement between PTN MEDIA, INC. and the undersigned.
Dated: August , 1998
[PLACEMENT AGENT]
By: ________________________________
Name:
Title:
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