US China Ginseng Holding, Inc a Nevada corporation Units of Common Stock & Warrants MANAGING PLACEMENT AGENT AGREEMENT
US
China Ginseng Holding,
Inc
a
Nevada
corporation
$2,000,000
Units
of Common Stock & Warrants
US
China
Ginseng Holding, Inc.
1208
RM,
A ▇▇ ▇▇ Building ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
July
29,
2005
White
Pacific Securities, Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
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Gentlemen:
This
Managing Placement Agent Agreement (this “Agreement”) is entered into as of the
date set forth above among US China Ginseng Holding, Inc., a Delaware
corporation (“USCG” or the “Company”), engaged in the business of medical
imaging and information management in the ginseng
,
and White Pacific Securities, Inc. (“WP” or “you” or the “Managing Placement
Agent”).
It
is
contemplated that the Managing Placement Agent will place, exclusively, and
on a
best efforts basis, 6,060,606
shares of common stock
of the
Company and warrants
to purchase 2,020,202 shares
of
common stock of the Company (the “Warrants”). The shares of common stock and
Warrants to be issued will be combined into 2,020,202
units
(the
“Units”). Each Unit will consist of three shares of common stock and a Warrant
to purchase two shares of common stock. The Units will be sold at a price of
$0.99
per unit,
for
gross proceeds of up to $2.0
million.
The
Warrants will have an exercise
price of $0.39
per
share of common stock and an expiration
period of five (5) years.
There
shall be a minimum
offering size of $250,000.
The
Offering will be made pursuant to Rule 506 of Regulation D of the Securities
Act
of 1933, as amended.
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1
The
Holders of the Units shall have certain registration rights more fully described
in Section 3.16 of this Agreement and in the Memorandum (defined in the
paragraph below), the related Subscription and Suitability Agreement and the
related Registration Rights Agreement.
The
Units
will be offered and sold in the Offering pursuant to the terms and conditions
described in the Confidential Private Placement Memorandum, dated no later
than
January 31, 2006 (references to which shall be deemed to include any and all
supplements and amendments thereto and all financial statements, if any, and
exhibits that are included or incorporated by reference therein, referred to
collectively herein as the “Memorandum”).
The
terms of the Units and the rights of the Holders thereof shall be as described
in the Memorandum and the documents attached as exhibits or appendices
thereto.
The
Units
will not be registered under the Securities Act of 1933, as amended (the “Act”)
or any state securities or “blue sky” laws and will be offered and sold in
reliance upon the exemptions afforded by Section 4(2) of the Act and Rule 506
of
Regulation D promulgated thereunder and by similar exemptions afforded by state
securities or “blue sky” laws. The subscribers for the Units (the “Investors”),
each of whom will be required to execute and deliver the set of subscription
documents that accompanies the Memorandum (the “Subscription Documents”), will
be issued the Units.
All
capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Memorandum. This Agreement is intended to
incorporate as contractual obligations, for the benefit of the Managing
Placement Agent, its Selected Brokers and any of the Investors in the Offering,
all the obligations of the Company pursuant to the Memorandum (including,
without limitation, the obligations of the Company pursuant to any registration
rights described therein), and constitutes agreement thereto by the Company.
To
the extent there is any conflict between the provisions of this Agreement and
the Memorandum, the terms of this Agreement shall govern.
Section
1. Appointment
of Managing Placement Agent and Terms of Offering
1.1
Appointment of Managing Placement Agent. You
are
hereby appointed as the exclusive Managing Placement Agent for the Offering
during the term of the Offering Period (as defined in Section 1.4 below) for
the
purpose of finding subscribers for the Units for the account of the Company.
Subject to the performance by the Company of its obligations and to the
completeness and accuracy of the representations and warranties set forth
herein, you hereby accept such appointment and agree, upon the terms and
conditions set forth in this Agreement, to use our best efforts during the
Offering Period to find subscribers to Units.
1.2
Appointment of Selected Brokers. You
may,
in your sole discretion, retain such other registered broker-dealers who are
members in good standing of the National Association of Securities Dealers,
Inc.
(“NASD”) or banks exempt from broker-dealer registration, to assist you in your
efforts to place the Offering (the “Selected Brokers”). You will enter into an
agreement with each Selected Broker in a form that shall be reasonably approved
by the Company. Each such agreement shall provide for the Selected Broker to
make the same representations, warranties and covenants as are made by you
in
this Agreement and to indemnify the Company in accordance with Section 7.2
hereof.
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2
1.3
Solicitation of Subscriptions. You
hereby agree to solicit, as an independent contractor and not as an agent of
the
Company, Investors acceptable to the Company in accordance with the terms of
the
Memorandum, the LOI and this Agreement.
1.4
Offering Period. The
Offering shall terminate six (6) months following the first date on which the
final printed Memorandum (in the form approved by you and ready for delivery
to
your clients accompanied by an initial blue sky survey, such survey to be
provided to the Company upon completion of the Memorandum) is made available
to
you (the “Commencement Date”) unless extended by mutual agreement of the
parties. This period (and any extensions thereof) shall be referred to as the
“Offering Period”. The date upon which the Offering Period ends shall be
referred to as the “Termination Date”. However, it is agreed that your
exclusivity for this Offering will be terminated in the event that at least
$250,000 in gross proceeds do not result from the Offering within 60 days from
the Commencement Date.
1.5
Closings.
1.5.1 Closings.
1.5.1.a
For
the first $250,000 in gross proceeds: WP
shall
deliver the investor checks to the banking institution escrow agent described
in
Section 1.5.4 below.
1.5.1.b
After
the achievement of the minimum Offering size of $250,000 in gross
proceeds:
Within
five (5) business days of WP’s receipt of an Acceptance Notice, WP and the
Company shall complete a closing (each one, including the Final Closing (defined
below), a “Closing”) at which WP shall deliver the Investor checks for the
purchase of the Units to the Company.
The
Company thereafter within ten (10) days of the Closing, shall deliver the
appropriate Certificates to WP for delivery to the Investors. The first such
Closing shall be deemed the “Initial Closing” and would represent such closing
after the initial $250,000 gross proceeds minimum Offering size is achieved,
whereby the financial institutional escrow agent shall release the gross
proceeds to the Company.
1.5.2 Final
Closing. On
the
Termination Date (or such earlier date as subscriptions for the maximum number
of Units have been accepted), all pending accepted subscriptions shall be
completed at a final Closing (the "Final Closing"). The Company shall fix a
date
no later than ten (10) days after the Termination Date on which the Final
Closing will take place (or, if the tenth day is not a business day, the next
business day) (the "Final Closing Date").
1.5.3 Closing
Procedures.
Each
Closing will take place at your offices, or at such other place as shall be
mutually agreed upon by the Company and you, at which time Investor checks
in
payment of the purchase price for the Units will be made to the Company;
provided, that the closing of any subscriptions shall not be deemed final unless
and until such check has cleared and the Company receives good funds for the
purchase price for any Units sold at such Closing. At each Closing, the Company
shall pay the Managing Placement Agent the compensation set forth in Section
1.7.
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3
1.5.4
Minimum
Level of Gross Proceeds.
It is
agreed that the initial gross proceeds of the Offering will be deposited in
an
interest bearing escrow account managed by a mutually acceptable independent
banking institution escrow agent.. The net proceeds and proper commissions
and
fees to the Company and WP, respectively, will be released from this escrow
account upon the achievement of the minimum Offering size, $250,000 in gross
proceeds. In the event that the minimum Offering size is not achieved by the
Termination Date, then the gross proceeds shall be returned to the Investors,
plus interest earned on the funds. It is mutually agreed that upon achieving
and
closing of the initial minimum Offering size, the next $100,000 raised shall
be
immediately disbursed to WP and/or its designee(s) for WP’s going public service
rendered which is more fully described in a separted contract titled OTCBB
Engagement Letter dated July 16, 2005.
1.6
Due Diligence.
You
agree to conduct your own due diligence and investigation of the company to
the
extent you deem necessary.
1.7
Compensation to the Managing Placement Agent.
1.7.1 Commissions
and Fees. Simultaneously
with the execution of the Managing Placement Agent Agreement, the Company agrees
to pay WP up-front fees of $12,500 (twelve thousand five hundred dollars) in
same day funds and, if requested, agree to pay WP’s counsel a retainer of
$5,000. In addition, WP shall receive upon each closing of the Offering a cash
commission equal to 10.0% of the gross proceeds raised by WP and a
non-accountable expense allowance equal to 3.0% of the gross proceeds raised
by
WP. Each closing shall occur when at least $25,000 of additional gross proceeds
(from the previous closing) are received by Managing Placement Agent, but only
upon the achievement of the minimum Offering size as described in Section 1.5.4
above. In addition, WP shall be issued warrants to purchase the common stock
of
USCG at the rate of 10,000 warrants per 100,000 common stock shares sold by
WP
in this Offering, and at an exercise price of $0.39 per share. These warrants
shall have the same terms and registration rights as the Warrants. The Company
and WP agree that this Offering is on an exclusive basis.
Provided
WP raises a minimum of $1,500,000 through the Offering, WP is hereby given
the
right of first refusal, for a period of 18 months after the Termination Date
of
this Agreement, to act in the capacity of placement agent and/or underwriter
on
future private placement offerings and initial and secondary public offerings
of
the Company. WP will not be entitled to any consideration on funds raised in
any
offering in which it chooses not to participate.
1.7.2
Expenses.
USCG
shall bear all costs and expenses incident to the issuance, offer, sale and
delivery of the securities in the proposed Offering, defined as all expenses
and
fees incident to the preparation and printing of the Private Placement
Memorandum, the costs and counsel fees of qualification under state securities
laws, fees and disbursements of counsel and accountants for USCG, Blue Sky
registration fees, road show and travel related expense and miscellaneous
out-of-pocket expenses incurred in connection with this engagement. To the
extent blue-sky work is undertaken by counsel to WP, it shall be separately
billed to USCG and shall be the financial obligation of USCG. If requested
to
perform blue-sky legal services by USCG, USCG will pay a retainer to WP’s
counsel before such counsel shall commence such blue-sky legal services. Such
amount shall be credited against the final amount due such counsel for its
blue-sky fees and expenses. WP shall not be responsible for any expense of
USCG
or others for any charges or claims related to the proposed financing or
otherwise if the sale of securities contemplated
by
this letter is not consummated. If the proposed Offering is not completed
because of USCG’s actions or the failure to take such actions as are reasonably
required hereunder and WP is prepared to perform in accordance with the terms
herein, then, in either such case, USCG agrees to promptly pay WP its actual
expenses. USCG shall pay the expenses of preparation of bound volumes to be
presented to WP and its counsel and all USCG travel and other expenses related
to road shows, if any, for the Offering. USCG will be required to pay for all
expenses in excess of $500 in advance. Any expenses incurred by White Pacific
on
behalf of USCG, related to this engagement will be invoiced and due upon
receipt. Expenses due White Pacific will be deducted from the proceeds of a
Close. Any out-of-pocket expenses above $1,000 will need the approval of the
Company in writing. In addition, any out-of-pocket expenses less than $1,000
that, together with previous expenses, exceed $1,500 for a 7 consecutive day
period, will need the approval of the Company in writing. Total travel, meals
and entertainment out-of-pocket expenses shall be limited to a maximum of $3,000
per month until the minimum of $250,000 in gross proceeds is raised by WP,
unless mutually agreed upon by WP and the Company.
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4
1.7.3 Payment
of Commissions.
Payment
of all commissions is subject to the following conditions:
No
commission will be payable with respect to any subscriptions for Units which
are
rejected by the Company; and no commissions will be payable to you with respect
to any sale of Units sold through you until such time as the Company has
received the total proceeds of any such sale.
Section
2. Representations
and Warranties of the Company
The
Company represents, warrants and agrees with you for your benefit that, except
as specifically disclosed in the Memorandum:
2.1 Power
and Authority of the Company.
The
Company is duly organized and validly
existing and in good standing as a corporation under the laws of the State
of
Nevada, with full power and authority to conduct business as described in the
Memorandum. The Company has, and at each Closing will have, full power and
authority to conduct all the activities conducted by it, to own or lease all
the
assets owned or leased by it and to conduct its business as described in the
Memorandum. The Company is, and at each Closing Date will be, duly licensed
or
qualified to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary. Complete and correct copies of the Certificate of
Incorporation and the Bylaws of the Company and all amendments thereto will
be
delivered to you and your counsel, and, except as specifically contemplated
by
the Memorandum or this Agreement, no changes therein will be made subsequent
to
the date hereof and prior to the Final Closing.
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5
2.2 Subsidiaries.
The
Company has a majority stake in one subsidiary as of the date of this Agreement,
and is identified as follows:▇▇▇ ▇▇▇▇ Hua Xing Ginseng Industry., Company
Limited, located in 1208 RM, A ▇▇ ▇▇ building ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇. A People’s Republic of China registered company.
2.3
Validity
of Issuance of Securities.
The
outstanding shares of Common Stock of the Company have been, and the Common
Stock shares to be issued due to the exercise of Warrants issued by the Company
pursuant to the Offering upon such issuance will be, when paid for as provided
in the Memorandum, duly authorized, validly issued, fully paid and
non-assessable, and, except as provided in Section 3.11 hereof, will not be
subject to any preemptive or similar rights. Except as specifically described
in
Sections 3.11 and 3.12 hereof, the Company does not have outstanding, and at
each Closing will not have outstanding, any options to purchase, or any rights
or warrants (other than the Employee Stock Options), to subscribe for, or any
securities or obligations convertible into (other than the Employee Stock
Options), or any contracts or commitments to issue or sell, any shares of Common
Stock or Common Stock or any warrants, convertible securities or
obligations.
2.4 Adequacy
of the Memorandum.
The
Company will have prepared and delivered to you, within 30 days from the signing
of this Agreement, the Memorandum. The Memorandum will not, and on any Closing
Date will not, 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 not misleading. Every contract or other document required
by
the Act or any regulations promulgated thereunder (the "Regulations") to be
described in or attached as an exhibit to the Memorandum or otherwise made
available to Investors will be so described, attached or made available. There
are no material contracts or other agreements to which the Company is a party
which will not be described in the Memorandum and/or delivered to the Managing
Placement Agent for review. All such contracts or other agreements to which
the
Company is a party will be duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company and are
enforceable against the Company in accordance with the terms
thereof.
2.5 Financial
Statements.
The
financial statements of the Company (including the related notes and supporting
schedules, if any, and the disclosure related thereto contained in the
Memorandum) will be materially true and correct when viewed as a whole, and
will
adequately and accurately reflect the financial condition of the Company in
accordance with past practices at the dates and for the periods
indicated.
2.6 Tax
Returns.
The
Company has filed all income, franchise, sales and other tax returns required
to
be filed through the date hereof and has paid all taxes shown as due thereon,
and no tax deficiency has been determined adversely to the Company which has
had
(nor does the Company have any knowledge of any disputes pending or threatened
relating to a tax deficiency which, if determined adversely to the Company,
might have) a material adverse effect on the earnings, affairs or business
prospects of the Company ("Material Adverse Effect").
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2.7 Due
Authorization and Enforceability of This Agreement.
This
Agreement has been duly and validly authorized, executed and delivered by or
on
behalf of the Company and constitutes the valid, binding and enforceable
agreement of the Company, except to the extent that (i) the enforceability
of
this Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally or by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and (ii) the indemnification
provisions of this Agreement may be held to violate public policy (under either
state or federal law) in the context of the offer or sale of securities. The
performance of this Agreement and the consummation of the transactions
contemplated hereby (x) will not result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company pursuant
to
the terms or provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give any other party
a
right to terminate any of its obligations under, or result in the acceleration
of any obligation under, (A) the Certificate of Incorporation or Bylaws of
the
Company, (B) any contract or other agreement to which the Company is a party
or
by which the Company, or any of its properties is bound or affected, or (y)
violate or conflict with any judgment, ruling, decree, order, statute, rule
or
regulation of any court or other governmental agency or body applicable to
the
business or properties of the Company.
2.8 No
Material Adverse Change.
Since
the respective dates as of which information will be given in the Memorandum,
there will not be any material adverse change in the condition, financial or
otherwise, except as set forth in or contemplated in the Memorandum, (i) there
will not be any change in the capitalization of the Company, or any material
change in the business, properties, business prospects, condition (financial
or
otherwise) or results of operations of the Company, arising for any reason
whatsoever other than in the ordinary course of business; (ii) the Company
will
not incur any material liabilities or obligations, direct or contingent, nor
has
it entered into nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein or as
specifically contemplated in the Memorandum; and (iii) the Company has not
and
will not have paid or declared any dividends or other distributions of any
kind
on any class of its capital stock. The Company does not anticipate any material
adverse changes in the Company's business, prospects or financial condition,
taken as a whole, within the next twelve months.
2.9 Absence
of Legal or Contractual Conflicts.
The
execution and delivery of this Agreement by the Company, and the consummation
of
the transactions contemplated in the Memorandum, will not, or with the passage
of time or the giving of notice would not, constitute a breach of, default
under
or violation of (i) any statute, indenture, mortgage, deed of trust, voting
trust, note, lease or other agreement or any instrument to which the Company
is
or will be a party or by which it or its property is or will be bound, or (ii)
any order, rule or regulation applicable to the Company of any court or any
governmental body or administrative agency having jurisdiction over its
properties or businesses.
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2.10 Governmental
Consents.
No
consent, approval, authorization or order of any court or governmental agency
or
body has been or is required for the performance of this Agreement and the
consummation of the transactions contemplated in this Agreement or in the
Memorandum by the Company, the absence of which would have a materially adverse
impact on the Company, except such as have been or are to be obtained by you
under state securities or "blue sky" laws.
2.11 Adverse
Claims.
Except
as what will specifically be described in the Memorandum, there is not pending,
threatened or contemplated any action, suit or proceeding before or by any
court
or other governmental body against the Company and no default exists in the
due
performance and observance of any material obligation, term, covenant or
condition of any agreement or instrument to which the Company is or may be
a
party, or by which it is bound that is not referred to in the Memorandum and
that is likely to result in any Material Adverse Effect.
2.12 Investment
Company.
On the
date hereof and on each Closing Date, the Company is not and will not be an
investment company as that term is defined in the Investment Company Act of
1940.
2.13 Offers.
Offers,
offers to sell, offers for sale, sales or attempt to dispose of any Units to
any
person made prior to the Offering Period upon the authority of the Company
are
disclosed and attached in Exhibit A.
2.14 Internal
Accounting Controls.
The
Company maintains a system of internal accounting control sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences and will work to continuously
improve such system.
2.16 No
Legal Actions.
Except
as will be specifically described in the Memorandum, there are no actions,
suits
or proceedings pending or, to the Company's knowledge, threatened against or
affecting the Company, its assets, or any of its officers in their capacity
as
such, before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding would be likely to have a Material
Adverse Effect on the Company.
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2.17 Compliance
with Laws and Contracts.
Except
as will be disclosed in the Memorandum and/or provided to you, the Company
has,
and at each Closing will have: (i) all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its business
as
contemplated in the Memorandum, (ii) complied in all material respects with
all
laws, regulations and orders applicable to it or its business and (iii)
performed all of its material obligations required to be performed by it, and
is
not, and at each Closing will not be, in default, under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note,
agreement, lease contract, lease, contract or other agreement or instrument
(collectively, a "contract or other agreement") to which it is a party or by
which its property is bound or affected. To the best knowledge of the Company,
no other party under any contract or other agreement to which it is a party
is
in default in any respect thereunder. The Company and each Subsidiary is not,
and at each Closing will not be, in violation of any provision of its
Certificate of Incorporation or Bylaws.
2.18 Accuracy
of Representations.
No
statement, representation, warranty or covenant made by the Company in this
Agreement or made in any certificate or document required by this Agreement
to
be delivered to you was or will be, when made, inaccurate, untrue or incorrect
in any material respect.
2.19 Intellectual
Property.
The
Company directly owns, or is licensed or otherwise has the full exclusive right
to use, all material trademarks and trade names which are used in or necessary
for the conduct of its business except as may be described in the Memorandum.
The Company owns or possesses adequate and sufficient rights to use all
intellectual property as currently used or proposed to be used by the Company
which is material to its current or proposed business, and no third parties
have
any rights to, and there are no infringement actions involving, any such
intellectual property which could materially adversely affect the use thereof
by
the Company. Except as may be specifically described in the Memorandum, no
claims have been asserted by any person to the use of any such intellectual
property or challenging or questioning the validity or effectiveness of any
such
intellectual property. The use, in connection with the business and operations
of the Company of such intellectual property does not, to the Company's
knowledge, infringe on the rights of any person.
2.20 Environmental
Permits.
The
Company has obtained all permits, licenses and other authorizations that are
required under, and is otherwise in compliance with, all environmental laws
relating directly to the Company's manufacture, storage, transportation and
sale, and the use by others as intended by the Company, of the Company's
products, including but not limited to the Federal Water Pollution Control
Act
(33 U.S.C. § 1251 et seq.), Resource Conservation & Recovery Act (42
U.S.C. § 6901 et seq.), Safe Drinking Water Act (21 U.S.C. § 349, 42
U.S.C. §§ 201, 300f), Toxic Substances Control Act (15 U.S.C. § 2601
et seq.), Clean Air Act (42 U.S.C. § 7401 et seq.), Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et
seq.), and any other laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or
industrial, toxic or hazardous substances or wastes, or petroleum and related
products or under any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder (collectively, the "Environmental Laws"), except as otherwise set
forth in the Memorandum or to the extent failure to have any such permit,
license or authorization or failure to comply, individually or in the aggregate,
does not have a material adverse effect.
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2.21 Environmental
Compliance.
To the
best of the Company's knowledge, there are no past or present events,
conditions, circumstances, activities, practices, incidents, actions, or plans
relating to the business as presently being conducted by the Company that
interfere with or prevent compliance or continued compliance with the
Environmental Laws, or which would be reasonably likely to give rise to any
legal liability (whether statutory or common law) or otherwise would be
reasonably likely to form the basis of any claim, action, demand, suit,
proceeding, hearing, notice of violation, study, investigation, remediation
or
cleanup based on or related to the generation, manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling, or
the
emission, discharge, release into the workplace, the community or the
environment of any pollutant, contaminant, chemical or industrial, toxic, or
hazardous substance or waste, or petroleum and related products, except for
any
liabilities or any claims, demands or other actions specified above that will
not individually or in the aggregate have a Material Adverse Effect, and no
asbestos-containing material and no underground or above-ground tanks are,
to
the best of the Company's knowledge, located on property owned or leased by
the
Company and none have been previously removed or filled by the Company or any
predecessor of the Company.
2.22 No
Brokers or Finders.
Other
than stated in Section 1.7.1 of this Agreement, there are no contracts,
agreements or understandings between the Company and any person (other than
the
Managing Placement Agent) that would give rise to a valid claim against the
Company or the Managing Placement Agent for a brokerage commission, finder's
fee
or like payment in connection with the transactions contemplated by this
Agreement. The Company does not have any obligations to any party which might
cause the transactions contemplated herein to be an improper usurpation of
a
corporate opportunity owed to another party or any other type of breach of
an
obligation to another party.
2.23 No
NASD Membership.
No
officer or director of the Company is a member of the NASD or an employee or
associated person of a member of the NASD.
2.24 Insurance.
The
Company has no D&O Insurance currently, however the Company will make a
decision shortly after closing of this Offering to determine if such insurance
would be necessary.
2.25 Confidentiality
Agreements.
Each
officer, director and stockholder (to the extent that such stockholder has
been
involved in the operations of the Company or any predecessor to the Company)
of
the Company and each employee of the Company or any predecessor to the Company,
who is or has been involved in the design and or development of any software,
website or other intellectual property developed, marketed, licensed or sold
by
the Company has, or prior to the Initial Closing shall have, executed a
confidentiality agreement in a form and substance reasonably satisfactory to
the
Managing Placement Agent pursuant to which each such person acknowledges and
agrees that any and all rights to such software are the sole and exclusive
property of the Company.
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10
2.26 Certain
Transactions.
The
section of the Memorandum entitled "Management Relationships, Transactions
and
Remuneration" will be complete and accurate in all material
respects.
Section
3.
Covenants
of the Company.
The
Company covenants with you as follows:
3.1 Amendment
of Memorandum.
Upon
the occurrence of any event which would cause the Memorandum to include during
the Offering Period an untrue statement of a material fact or omit to state
any
material fact necessary to make the statements therein not misleading, the
Company will promptly notify you of the event. The Company will immediately
prepare and furnish to you such number of copies as you may request of an
amendment or amendments of, or a supplement or supplements to, the Memorandum
(in form and substance satisfactory to you) which will amend or supplement
the
Memorandum so that as amended or supplemented it shall not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading.
3.2 Compliance
with Securities Laws.
The
Company shall take all reasonable steps necessary to cause the sale of the
Units
to take place in a manner that will permit reliance upon Regulation D
promulgated under the Act and will file the required Form D in a timely fashion.
The Company will secure or cause "blue sky" counsel to secure on its behalf
exemptions from qualification or registration of the Units under the securities
or "blue sky" laws of such states as may be reasonably designated by you, and
will make such applications, file such documents, and furnish such information
as may reasonably be required for that purpose. The Company will cause its
blue
sky counsel (which may be counsel to the Managing Placement Agent) to provide
to
you for your reliance a true and correct "Blue Sky Memorandum" and supplements
thereto in customary form upon which you may rely in all respects as to state
qualifications and conditions for sale of the Units. The officers, directors
and
promoters of the Company will comply with applicable "blue sky" escrow
requirements, including those pertaining to the escrow of Units, provided such
escrow shall in no event extend beyond a period of two years.
3.3 Due
Diligence Inquiry.
Upon
request by you, the Company will make reasonable effort to furnish you
information necessary in your judgment, or in the judgment of your counsel,
to
confirm the continued fairness, accuracy and completeness of the Memorandum
in
all material respects during the Offering Period.
3.4 Reports
and Other Information.
The
Company will, as long as any Units may remain outstanding, furnish directly
to
you one (1) copy of each report furnished to Investors at the time such report
is furnished to the Investors.
Page
11
3.5 Delivery
of Sales Material.
The
Company will deliver to you, from time to time, all sales material (whether
designated solely for broker-dealer use or otherwise) proposed to be used or
delivered in connection with the offering of the Units.
3.6 Limited
Liability and Company Status.
The
Company will take all steps necessary to preserve, to the extent possible,
the
limited liability of the Investors and its status and good standing as a
corporation.
3.7 Notification
of Changes.
The
Company will notify you immediately of any change having or which is likely
to
have a Material Adverse Effect relating to any of the Company's representations,
warranties, covenants or agreements contained herein that occurs at any time
prior to the Final Closing.
3.8 Use
of Proceeds.
The
Company will use the net proceeds received from the issuance of the Units in
the
manner specified in the Memorandum.
3.9 Communication.
During
the Offering Period, the Company shall not communicate directly with potential
investors introduced by you, except in your presence or as you instruct. All
inquiries concerning the Offering received by the Company shall be immediately
referred to you or as you instruct.
3.10 Copies
and Communications.
The
Company shall supply you copies of all intended communications to investors
twenty-four (24) hours prior to mailing for a period of one (1) year following
the Termination Date.
3.11 Prior
Notice.
During
the Offering Period, the Company will not sell any equity or debt securities
or
securities convertible into equity securities of the Company (or its
predecessor) without your prior written consent which may not be unreasonably
withheld. At
the
Termination Date, there shall be no more than 31,686,868
shares
of the Company's Common Stock outstanding on a fully diluted basis, assuming
exercise of all options, warrants and convertible securities and of the Units
and Managing Placement Agent Warrants issued in connection with this Offering.
3.12 Warrants
and Options.
Company
has represented to Placement Agent that there
are
no current options outstanding and no warrants outstanding. Without the prior
written consent of WP, USCG will not issue any additional warrants, options
or
other rights to acquire stock of USCG from the date of this letter through
completion of the Offering or termination of the Offering Agreement in
accordance with the terms thereof.
3.13 Employment
Agreements.
Within
30 days from the execution of this Agreement, the Company shall enter into
employment agreements with each of the key personnel in a form and substance
reasonably satisfactory to the Managing Placement Agent and having terms
consistent with the description contained in the Memorandum ("Key Employee
Employment Agreements"). The Company agrees that no material changes to the
terms of such Key Employee Employment Agreements shall be made during the
initial terms thereof without the prior consent of the Managing Placement Agent,
which consent shall not be unreasonably withheld.
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12
3.14 Reservation
of Shares.
The
Company will set aside and at all times have available a sufficient number
of
shares of its Common Stock to allow the exercise of all options, warrants and
conversion demands then issued and outstanding.
3.15 Confidentiality
Agreements.
The
Company shall cause each officer, director and each employee of the Company
or
any predecessor to the Company, who is, has been or becomes involved in the
design and or development of any software developed, marketed, licensed or
sold
by the Company has, or prior to the Initial Closing shall have, executed a
confidentiality agreement in a form and substance reasonably satisfactory to
the
Managing Placement Agent pursuant to which each such person acknowledges and
agrees that any and all rights to such software are the sole and exclusive
property of the Company.
3.16 Registration
Rights.
The
registration rights of the purchasers of Units in the Offering shall be
substantially as set forth in the Memorandum, the Subscription Agreement and
the
Registration Rights Agreement. The
Company will file a Registration Statement covering the Common Stock and Warrant
Shares. The Company will file the Registration Statement at the latest within
75
days after the Final Closing of this private placement. In addition, the Company
will use its best efforts to have the Registration Statement declared effective
by the earlier of 10 days after notice by the SEC that it may be declared
effective or 180 days from the closing date of the equity private placement.
If
the Registration Statement is not filed on a timely basis or is not declared
effective by the SEC for any reason on a timely basis, the Company will be
required to pay the Investor an amount equal to 1% of the amount invested for
the first 30 days (or part) after the relevant date and 2% of such amount for
each subsequent 30 day period (or part), in each case until the Registration
Statement is filed or declared effective, as the case may be. The Company shall
maintain the effectiveness of the Registration Statement as provided in the
Registration Rights Agreement. The Registration Statement will also be subject
to other provisions of the Registration Rights Agreement.
Section
4.
Representations
and Warranties of the Managing Placement Agent.
You
hereby represent, warrant and agree with the Company for its benefit
that:
4.1 Power
and Authority.
You
have been duly organized and are validly existing as a corporation in good
standing under the laws of the State of your formation, with all requisite
corporate power and authority to conduct your business and to perform the
obligations contemplated herein.
4.2 Due
Authorization and Enforceability of this Agreement.
This
Agreement has been duly and validly authorized, executed and delivered by you
or
on your behalf and constitutes your valid, binding and enforceable agreement,
except to the extent that (i) the enforceability of this Agreement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and (ii) the indemnification provisions of this Agreement may be
held to violate public policy (under either state or federal law) in the context
of the offer or sale of securities.
Page
13
4.3 Absence
of Legal or Contractual Conflicts.
Your
execution and delivery of this Agreement, and the performance of your
obligations thereunder, will not result in a violation of, be in conflict with
or constitute a default under any agreement or instrument to which you are
a
party or by which you or your properties are bound, or any judgment, decree,
order or, to your knowledge, any statute, rule or regulation applicable to
you.
4.4 Broker-Dealer
Qualifications.
You are
(and will continue to be during the term of this Agreement) a member in good
standing of the NASD and agree to abide by the Rules of Fair Practice of such
association. You are properly registered or licensed as a broker or dealer
under
applicable federal and state securities laws and regulations. You, your
affiliates, and your or their officers and directors (or any other person
serving in a similar capacity) have not taken or failed to take any act, and
are
not subject to any order or proceedings, that would make unavailable any limited
offering exemption from registration or qualification requirements of state
securities laws.
Section
5.
Covenants
of the Managing Placement Agent.
You
covenant with the Company as follows:
5.1 Delivery
of Offering Materials.
You or
a person acting on your behalf shall furnish to each offeree, concurrently
with
making an offer to such offeree (and its purchaser representative, if such
a
representative has been selected), a numbered copy of the Memorandum, as it
may
have been amended or supplemented by the Company, and shall maintain adequate
records of each person to whom a Memorandum has been delivered.
5.2 Conduct
of Solicitation.
You or
a person acting on your behalf will cause each person interested in acquiring
the Units to complete and execute a Subscription Document (a copy of which
is
included in the Subscription Documents accompanying the Memorandum) in order
to
enable the Company to determine whether such person is qualified to acquire
the
Units. You will not execute any Subscription Document or any other certificate
or document contained in the Subscription Documents for any person and will
not
invest in the Units through any person's discretionary trading account without
the written approval of such person. You will abide by, and take reasonable
precautions to insure compliance with, all provisions contained in the
Memorandum and this Agreement regulating the terms and manner of conducting
the
Offering.
5.3 Compliance
with Federal Securities Laws.
You
will use your best efforts to comply with all applicable requirements of the
Act
and the rules and regulations promulgated thereunder, including Regulation
D.
You and any person acting on your behalf will make offers of the Units only
to
persons whom you and your agents have reasonable grounds to believe and do
believe: (a) have such knowledge and experience in business and financial
matters (either alone or together with a purchaser representative) that they
are
capable of evaluating the merits and risks of the prospective investment and
of
protecting their own interests in connection with the transaction and (b) meet
the Investor suitability requirements contained in the Memorandum. You and
any
person acting on your behalf will cooperate with the Company so that the Units
are sold to only "accredited investors" as such term is defined in Rule 501
of
Regulation D and you and your agents will exercise reasonable care to ensure
that a purchaser is not an underwriter within the meaning of Section 2(11)
of
the Act.
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5.4 Compliance
with Blue Sky Laws.
You
will comply with all applicable requirements of any state securities or "blue
sky" law or rule or regulation promulgated thereunder. You will not offer or
sell any of the Units in any jurisdiction (i) prior to receiving written
instructions from the Company and the "blue sky" counsel that offers may be
made
in such jurisdiction and (ii) except in compliance with all applicable
securities or "blue sky" laws and in accordance with the Blue Sky Memorandum
delivered to you by Company's counsel. With respect to any state which limits
the number of offers and sales which may be made, you shall offer for sale
no
more than such number of the Units as we advise you may be offered and/or
sold.
Section
6.
Conditions
to Closings.
The
obligations of the Managing Placement Agent hereunder are subject to the
accuracy when made and at each of the Closings of the representations and
warranties of the Company contained herein, to the performance by the Company
of
its obligations hereunder, and to each of the following additional terms and
conditions:
6.1 No
Material Change.
The
Managing Placement Agent shall not have discovered on or prior to any Closing
that the Memorandum contains an untrue statement of a fact which, in the opinion
of the Managing Placement Agent, is material or omits to state a fact which,
in
the opinion of the Managing Placement Agent, is material and is required to
be
stated therein or is necessary to make the statements therein in light of the
circumstances under which they were made not misleading. Each of the
representations and warranties of the Company shall be true as of the date
of
each Closing.
6.2 Corporate
Proceedings.
All
corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the certificates representing the Units
and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects
to
counsel for the Managing Placement Agent, and the Company shall have furnished
to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
6.3 Opinion
of Counsel.
None.
6.4 Agreed
Upon Procedures.
None.
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15
6.5 Compliance
With Covenants.
The
Company shall be in compliance with each of the covenants set forth in Section
4
of this Agreement.
6.6 Employment
Agreements.
The
Company shall have agreed in writing to all material terms of the Key Employee
Employment Agreements.
6.7 Closing
Certificate. The
Company shall have furnished to the Managing Placement Agent a certificate,
dated as of the final Closing Date, of the Chief Executive Officer and the
President of the Company stating that:
6.7.1 The
representations, warranties and agreements of the Company contained herein
are
true and correct on and as of such Closing Date with the same effect as if
made
on such Closing Date; the Company has complied in all material respects with
all
its agreements contained herein to be performed on or prior to such Closing
Date; and the conditions precedent to the obligations of the Managing Placement
Agent set forth herein have been fulfilled; and
6.7.2 Such
officers have reviewed the Memorandum and as of the date hereof, and as of
such
Closing Date, the Memorandum did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading.
6.8 Other
Certificates.
The
Company shall have furnished to the Managing Placement Agent such further
information, certificates and documents as the Managing Placement Agent may
reasonably request.
6.9 Financial
Statements.
All
financial statements contained in the Memorandum, as amended from time to time,
will be in form and content reasonably satisfactory to you and to your counsel,
and will have been prepared and reported on by the Company and will be
Management’s best estimates of the financial results of the Company as of that
date.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel of
the
Managing Placement Agent.
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Section
7. Indemnification.
7.1 By
the Company.
The
Company will indemnify and hold harmless you, each Selected Broker, and each
person, if any, who controls you or any Selected Broker within the meaning
of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which you, a Selected Broker or such controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Memorandum, or in any related sales material (whether designated solely
for
broker-dealer use or otherwise) which the Company or any officer thereof
authorizes in writing for use by you or any Selected Broker, or arise out of
or
are based upon the omission or alleged omission to state therein any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Company will not be liable to
indemnify you, each Selected Broker or such a controlling person thereof
pursuant to this Section 7.1 to the extent that any such loss, claim, damage
or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by you or any
Selected Broker specifically for use in the Memorandum or sales material; and
will reimburse you, each Selected Broker and each such controlling person for
any legal or other expenses reasonably incurred in connection with investigating
or defending any such loss, claim, damage, liability or action. Notwithstanding
the foregoing provisions of this Section 7.1, the Company shall not indemnify
you, any Selected Broker or any person, if any, who controls you or the Selected
Broker within the meaning of the Act, for losses, liabilities or expenses
arising from or out of an alleged violation of federal or state securities
laws
unless (i) there has been a successful adjudication on the merits of each count
involving alleged securities law violations by the particular indemnitee not
caused by materials supplied by the Company, (ii) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction
as
to the particular indemnitee or (iii) a court of competent jurisdiction approves
the settlement of the claims against the particular indemnitee; nor shall the
Company indemnify you, any Selected Broker or any person, if any, who controls
you or the Selected Broker within the meaning of the Act, for losses,
liabilities or expenses arising from or out of any material misrepresentation
made by you or your representatives which are inconsistent with any statement
made in the Memorandum or in any written materials provided to you by the
Company in connection with your duties hereunder. In any claim against the
Company for indemnification for federal or state securities law violations,
the
party seeking indemnification shall place before the court the position of
the
Securities and Exchange Commission and any states that may require it with
respect to the issue of indemnification for securities law violations. This
indemnification supersedes the indemnification in the LOI.
If
for
any reason the indemnification provided for in the preceding paragraph is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party. but also the relative
fault
of the indemnified party and the indemnifying party.. For purposes of this
paragraph, “relative benefit” shall mean the amount of net proceeds actually
received by the Company in the Offering versus the compensation received by
WP
for services provided in connection with the Offering, net of its expenses.
Page
17
7.2 By
the Managing Placement Agent and Each Selected Broker.
You and
each Selected Broker will jointly and severally indemnify and hold harmless
the
Company and each other person who controls the Company within the meaning of
the
Act, against any losses, claims, damages or liabilities, joint or several,
to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Memorandum, or any related
sales
material which the Company authorizes in writing for use by you and the Selected
Brokers, or arise out of or are based upon the omission or the alleged omission
to state therein any material fact required to be stated therein or necessary
to
make the statements therein not misleading, in each case to the extent that
such
untrue statement or alleged untrue statement or omission or alleged omission
was
made in reliance upon and in conformity with written information furnished
to
the Company by you or any Selected Broker specifically for use therein; (ii)
any
material misrepresentation made by you or your representatives which are
inconsistent with any statement made in the Memorandum or in any written
materials provided to you by the Company in connection with your duties
hereunder; and (iii) any breach by you or any Selected Broker of any
representation, warranty or covenant contained in this Agreement,. You or any
Selected Broker will reimburse any legal or other expenses reasonably incurred
by the Company or any controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action, provided that
you
or any Selected Broker shall reimburse any such legal or other expenses in
connection with investigating or defending any such loss, claim, damage,
liability or action only to the extent that such loss, claim, damage or
liability results from any action or inaction caused by you. This
indemnification supercedes the indemnification in the LOI.
7.3 Notification.
Promptly after receipt by an indemnified party under this Section 7 of notice
of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
7, notify the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability
which
it may have to any indemnified party otherwise than under this Section 7. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Section
8.
Representation
on Board of Directors.
N/A
Section
9. Termination
of this Agreement.
9.1 Termination.
The
Offering shall terminate six months following the Commencement Date.
If,
in
your opinion and on a reasonable basis, the condition of the Company, financial
or otherwise, and its prospects become materially adverse from what was
presented to you, based upon information provided by the Company (including
the
Company's financial information and projections), you shall have the sole
discretion, exercised in good faith, to review and determine your continued
interest in participating in the proposed Offering. In the event you terminate
the Offering in your sole discretion based upon the preceding sentence prior
to
the Company’s receipt of minimum proceeds from the Offering of $250,000, your
compensation, excluding the $12,500 up-front fee stated in Section 1.7.1,
hereunder shall be limited to your reasonable expenses incurred to the date
of
such termination in connection with the offering, and in no event shall such
un-reimbursed expenses exceed $5,000.
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9.2 Liability
of Parties.
All
representations, warranties and indemnification agreements contained in this
Agreement shall remain operative and in full force and effect, regardless of
any
termination pursuant to Section 9.1, and shall survive the Final Closing
Date.
Section
10. Miscellaneous
Provisions.
10.1 Notices.
All
notices provided for by this Agreement shall be made in writing either (i)
by
actual delivery of the notice to the parties thereunto entitled or (ii) by
the
mailing of the notice in the United States mail to the address, as stated below
(or at such other address as may have been designated by written notice), of
the
party entitled thereto, by certified or registered mail, return receipt
requested. The notice shall be deemed to have been received in case (i) on
the
date of its actual receipt by the party entitled thereto and in case (ii) on
the
date of deposit in the United States mail.
All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and, if sent to the Managing Placement Agent shall be sent
to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, tel. ▇▇▇-▇▇▇-▇▇▇▇, and if sent to the Company
shall be mailed or delivered to the Company at the address shown in the
Memorandum.
10.2 Parties.
This
Agreement shall inure to the benefit of and be binding upon you, the Company
and
each of your and the Company's respective successors and legal representatives.
Except as otherwise set forth in this Section, nothing expressed or mentioned
in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provision herein contained. No purchaser of Units will be deemed a
successor because of such purchase. Notwithstanding the foregoing, all of the
provisions of this Agreement shall also be for the benefit of and may be relied
upon by the other Selected Brokers and any person or persons who control any
of
the Selected Brokers within the meaning of Section 15 of the Act.
10.3 Applicable
Law; Arbitration.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California. Any dispute, claim or controversy arising out of this
Agreement shall be resolved by binding arbitration to be held in California
in
accordance with the commercial rules, as then in effect, of the National
Association of Securities Dealers, Inc.
10.4 Multiple
Counterparts.
This
Agreement may be executed in a number of identical counterparts, each of which
shall be deemed to be an original, but all of which constitute, collectively,
one and the same Agreement; but in making proof of this Agreement, it shall
not
be necessary to produce or account for more than one such
counterpart.
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10.5 Modification
or Amendment.
This
Agreement may not be modified or amended except by written agreement executed
by
the parties hereto.
10.6 Other
Instruments.
The
parties hereto covenant and agree that they will execute such other and further
instruments and documents as are or may become necessary or convenient to
effectuate and carry out this Agreement.
10.7 Validity.
Should
any portion of this Agreement be declared invalid and unenforceable, then such
portion shall be deemed to be severable from this Agreement and shall not affect
the remainder of this Agreement.
10.8 Captions.
The
captions used in this Agreement are for convenience only and shall not be
construed in interpreting this Agreement.
10.9 Currency.
All
units of currency of this Agreement are in US Dollar, unless otherwise
specified..
10.10 Entire
Agreement.
This
Agreement contains the entire understanding between the parties and supersedes
any prior understandings or written or oral agreements between them respecting
the subject matter hereof.
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If
the
foregoing is in accordance with our agreement, please sign and return to us
a
counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement among you, the Company in accordance with its
terms.
| Very truly yours, | ||
|
US
CHINA GINSENG HOLDING, INC.
|
||
| |
By |
|
|
Liu Changzhen, Chairman
|
||
| By | ||
|
Song Jiankun, President |
||
Confirmed
and Accepted as of the date
first
above written:
WHITE
PACIFIC SECURITIES, INC.
| By | |||
|
▇▇▇▇▇▇▇ ▇▇▇, CEO
|
|||
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