PLACEMENT AGENT AGREEMENT
THIS PLACEMENT AGENT AGREEMENT ("Agreement"), made as
of the 18th day of January, 2000, by and between CAMBEX
CORPORATION, a Massachusetts corporation (the
"Company"), and SOVEREIGN CAPITAL ADVISORS, LLC, a
Nevada limited liability company (the "Agent").
BACKGROUND
The Company proposes to issue and sell its Series 1
Convertible Bridge Notes (the "Securities") resulting
in gross proceeds to the Company of up to $2,000,000
(the "Offering"), in a transaction not involving a
public offering and without registration under the
Securities Act of 1933, as amended (the "Act"),
pursuant to exemptions from the registration
requirements of the Act under Section 4(2) of the Act
and Regulation D promulgated under the Act ("Regulation
D"). Agent has offered to assist the Company to
structure the Offering and the Securities, and to
introduce the Company to prospective investors on a
"best efforts basis." The Company desires to secure
the services of Agent on the terms and conditions
hereinafter set forth.
AGREEMENT
For and in consideration of the mutual covenants
herein, and other good and valuable consideration, the
receipt and legal sufficiency of which is hereby
acknowledged, the parties hereto agree:
Section 1. Engagement of Agent.
Section 1.1 Appointment.
The Company hereby appoints Agent as its exclusive
agent in connection with the proposed issuance and sale
by the Company of securities resulting in gross
proceeds to the Company of up to $2,000,000. Agent, on
the basis of the representations and warranties herein
contained, and upon and subject to the terms and
conditions herein set forth, accepts such appointment.
This appointment shall be irrevocable for the period
commencing January 1, 2000 and ending January 20, 2000,
which period maybe extended by the consent of the
Company and Agent (the "Offering Period").
Section 1.2 Compensation.
The Company shall pay Agent a finder's fee of ten
percent (10%) of the gross proceeds derived from the
offer, sale, and issuance of the Securities or any
other securities issued by the Company issued by the
Company during the Offering Period (the "Gross
Proceeds") plus a combined accountable and non-
accountable expense allowance of two percent (2%) of
the Gross Proceeds. The Company agrees that the amount
of such fees and expenses shall be deducted by Escrow
Agent from the proceeds of the issuance and sale of the
Securities.
Section 1.3 Reimbursement of Expenses.
The Company agrees to pay the expenses of Agent
including the fees and expenses of counsel to Agent for
the preparation of the Transaction Agreements in
accordance with the Purchase Agreement, and the fees
and expenses of the Escrow Agent in accordance with the
Escrow Agreement in accordance with the fees provided
for therein. The Company agrees that the amount of
such fees and expenses shall be deducted by Escrow
Agent from the proceeds of the issuance and sale of the
Securities.
Section 1.4 Limited Role of Agent.
Agent has acted only as an advisor to the Company,
Agent has advised the Company on the structure of the
Offering and Securities, and has identified potential
investors. The Company has offered the Securities to
the investors and has negotiated directly with the
investors in the Offering. Agent will use best efforts
to introduce the Company only to "accredited investors"
as defined in Regulation D. Wherever possible Agent
will introduce the Company to prospective investors who
are not "U.S. Persons," as defined in Regulation S.
Section 1.5 Right of First Refusal.
The Company hereby grants Agent a right of first
refusal to act as placement agent for any future
private financings of the Company, whether of equity
securities, convertible debt securities, or securities
or instruments convertible into or exchangeable for
debt or equity securities of the Company, or similar
transactions. This right of first refusal shall only
apply to future financings in which the offering,
conversion, or exchange price per share under such
future financings is equal to or less than the
Conversion Price stated in the Bridge Notes. The
duration of Agent's right of first refusal under this
Section 1.5 shall be for a period of one (1) year
following the final Closing of the Offering. In the
event that the Company wishes to undertake a
transaction described in this Section 1.5, the Company
shall send Agent a written notice of the proposed
transaction (whether the transaction is initiated by
the Company or is offered to the Company by a third
party) in sufficient specificity to allow Agent to
understand the proposed transaction clearly. This
notice must be delivered to Agent at least twenty days
prior to the proposed closing of the transaction.
Agent shall have ten days from receipt of that notice
to determine whether or not it wishes to exercise its
right of first refusal with respect to that
transaction. Agent shall notify the Company in writing
of its decision to exercise or waive its right of first
refusal with respect to the transaction described in
the notice. If Agent waives its right of first refusal
with respect to a particular transaction, the Company
may proceed with that transaction, provided however,
that if the terms of the transaction are changed in any
material way from the terms set forth in the notice to
Agent, Agent's right of first refusal shall commence
again. Agent's waiver of its rights of first refusal
with respect to any specific transaction shall not act
as a waiver of its rights with respect to future
transactions within the applicable time period.
Section 1.6 Confidentiality.
The Company agrees to maintain the confidentiality of
all prospective investors identified to the Company by
Agent, except as required by applicable law. For a
period of two (2) years from the Closing, the Company
will not solicit or enter into any financing
transaction with such investors without the written
consent of Agent and payment to Agent compensation no
less than the compensation to be paid to Agent
hereunder for raising a like amount.
Section 1.7 Remedies.
In the event that Company breaches Section 1.5 hereof
or Section 1.6 hereof, Agent shall be entitled to
receive compensation in respect of the financing giving
rise to the breach of this Agreement at the rates set
forth in Section 1.2 hereof.
Section 2. Conduct of the Offering.
Section 2.1 Offering Documents.
The Company shall utilize a Series 1 Bridge Note
Purchase and Security Agreement (the "Purchase
Agreement"), Series 1 Bridge Notes in the form of
Exhibit A to the Purchase Agreement (the "Series 1
Bridge Notes"), an Attached Repricing Warrant in the
form attached to the Series 1 Bridge Notes attached as
Attachment 1, a Common Stock Purchase Warrant in the
form of Exhibit B to the Purchase Agreement (the
"Purchase Warrant"), a Registration Rights Agreement in
the form of Exhibit C to the Purchase Agreement the
("Registration Rights Agreement"), an Escrow Agreement
in the form of Exhibit D to the Purchase Agreement (the
"Escrow Agreement"), a form of opinion of Company
counsel in the form of Exhibit E to the Purchase
Agreement (the "Company Opinion"), a Form of
Irrevocable Transfer Agent Instructions in the form of
Exhibit F to the Purchase Agreement (the "Transfer
Agent Instructions"), a certificate of the Company's
Secretary (the "Secretary Certificate") and a
certificate of the Company's chief executive officer
("Compliance Certificate") (collectively, the Purchase
Agreement and all Exhibits thereto, the Secretary
Certificate and the Compliance Certificate are herein
after referred to as the "Transaction Agreements") in
connection with the Offering. The Company and its
counsel have reviewed, commented upon, and approved the
Transaction Agreements.
Section 2.2 Public Information.
The Company within a reasonable amount of time prior to
any Closing, shall provide each prospective investor
with a copy of all information required by Rule
502(b)(2)(ii) of Regulation D promulgated pursuant to
the Securities Act (collectively, "SEC Documents").
The SEC Documents have been prepared in conformity with
the requirements (to the extent applicable) of the
Securities and Exchange Act of 1934, as amended (the
"Act") and the rules and regulations ("Rules and
Regulations") of the Commission promulgated thereunder.
As used in this Agreement, the term "Offering
Documents" means collectively the SEC Documents and the
Transaction Agreements, and all amendments, exhibits,
and supplements thereto, together with any other
documents which are provided to Agent by, or approved
for Agent's use by, the Company for this Offering.
Section 2.3 Accuracy of Offering Documents.
The Offering Documents, at the time of delivery to
Purchasers, conformed in all material respects with the
requirements, to the extent applicable, of the Act and
the applicable Rules and Regulations, and did not
include 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. At each Closing, the Offering
Documents will contain all statements which are
required to be stated therein in accordance with the
Act and the Rules and Regulations for the purposes of
the proposed Offering, and all statements of material
fact contained in the Offering memorandum will be true
and correct, and the Offering Documents will not
include 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; provided, however, that the Company
does not make any representations or warranties as to
the information contained in or omitted from the
Offering Documents in reliance upon written information
furnished on behalf of Agent specifically for use
therein. Agent has no responsibility for the contents,
accuracy, or adequacy of the Offering Documents, or for
the compliance of the Offering Documents, with the
requirements of Rule 502(b)(2)(ii) of Regulation D
promulgated pursuant to the Securities Act.
Section 2.4 Duty to Amend.
If, at any time during the Offering, or such longer
period as the Offering Documents are required to be
delivered under the Act, any event occurs or any event
known to the Company relating to or affecting the
Company shall occur as a result of which the Offering
Documents as then amended or supplemented would include
an untrue statement of a material fact, or omit to
state any material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, or if it is
necessary at any time after the date hereof to amend or
supplement the Offering Documents to comply with the
Act or the applicable Rules and Regulations, the
Company shall forthwith notify Agent thereof and shall
prepare such further amendment or supplement to the
Offering Documents as may be required and shall furnish
and deliver to Agent and to others, whose names and
addresses are designated by Agent, all at the cost of
the Company, a reasonable number of copies of the
amendment or supplement or of the amended or
supplemented Offering Documents which, as so amended or
supplemented, will not contain an untrue statement of a
material fact or omit to state any material fact
necessary in order to make the Offering Documents not
misleading in the light of the circumstances when it is
delivered to a purchaser or prospective purchaser, and
which will comply in all respects with the requirements
(to the extent applicable) of the Act and the
applicable Rules and Regulations.
Section 2.5 Escrow of Funds.
Pursuant to the Escrow Agreement, executed by the
Company, the person named as escrow agent in the Escrow
Agreement (the "Escrow Agent"), and the prospective
investors who have executed signature pages to the
Purchase Agreement, the Registration Rights Agreement,
and the Escrow Agreement (the "Purchasers"), the
purchase price for the Securities to be purchased as
reflected on the Purchaser Signature Page to the
Purchase Agreement shall be wired to the to the Escrow
Agent to be held by the Escrow Agent as provided in the
Escrow Agreement.
Section 2.6 Approval of Investors.
Prior to each closing, the Company shall have the right
to approve each Purchaser. If the Company withholds
approval of any Purchaser, the purchase price wired to
Escrow Agent by such Purchaser shall be returned to
such Purchaser along with the Purchaser Signature Pages
of such Purchaser to the Purchase Agreement, the
Registration Rights Agreement, and the Escrow
Agreement. The right to withhold approval of any
Purchaser shall be deemed to have been waived if the
Company authorizes the Escrow Agent to disburse funds
provided by any Purchaser at any closing.
Section 2.7 Delivery of Securities.
Securities in such form that, subject to applicable
transfer restrictions as described in the Purchase
Agreement, they can be negotiated by the holders
thereof (issued in such denominations and in such names
as the Purchasers of the Securities may request shall
be delivered by the Company to the counsel for
Placement Agent, with copies made available to Agent
for checking at least one (1) full business day prior
to the Closing Date, it being understood that the
directions from Agent to the Company shall be given at
least two (2) full business days prior to the Closing
Date. The Securities shall be delivered at the Initial
Closing and at each Subsequent Closing.
Section 2.8 Initial Closing.
The Initial Closing (the "Initial Closing") shall occur
at such time as (a) Purchasers have delivered to the
Company (care of Balboni Law Group LLC, counsel for
Agent) executed Purchaser Signature Pages to each of
the Purchase Agreement, the Registration Rights
Agreement, and the Escrow Agreement, (b) the Company
has not withheld approval the Purchasers, and (c) all
other conditions to the obligation of the Purchasers
and the Company to close the transactions contemplated
by the Purchase Agreement have been satisfied or
waived.
Section 2.9 Subsequent Closings.
In the event that the Initial Closing shall be for an
amount of Securities that is less than the amount of
the Offering, the Offering may be continued, and
additional Closings may be held (each a "Subsequent
Closing") throughout the Offering Period. (a)
Purchasers have delivered to the Company (care of
Balboni Law Group LLC, counsel for Agent) executed
Purchaser Signature Pages to each of the Purchase
Agreement, the Registration Rights Agreement, and the
Escrow Agreement, (b) the Company has not withheld
approval the Purchasers, and (c) all other conditions
to the obligation of the Purchasers and the Company to
close the transactions contemplated by the Purchase
Agreement have been satisfied or waived.
Section 2.10 Disbursements at Closing.
At each Closing, the Company shall execute a Release
Notice that authorizes the Escrow Agent to pay expenses
of the Offering in the amounts specified, and effect a
wire transfer of the net proceeds of such Closing to
the Company or another entity designated therein by the
Company. The authorization of the Company to release
the funds held by the Escrow Agent is the Company's
authorization to release the executed Transaction
Agreements and Securities to the Purchasers. One
complete set of executed Transaction Documents will be
delivered to the Company.
Section 2.11 Time and Place of Closings.
The Initial Closing and any Subsequent Closing shall be
held at the offices of Balboni Law Group LLC, 3475
Lenox Road, Suite 990, Atlanta, Georgia 30326, at 10:00
a.m. on such dates as are fixed in accordance with
Sections 3.4 and 3.5 hereof. The Closing Date may be
changed by mutual agreement of Agent and the Company.
The Company agrees to rely on faxed signature pages
from the Purchasers, without the requirement of
obtaining an originally signed version of any of the
Transactions Agreements to which a Purchaser is a
Party.
Section 3. Conditions of Agent's Obligations.
Agent's obligations hereunder shall be subject to the
accuracy, as of the Closing Date, of the
representations and warranties on the part of the
Company contained in this Agreement, to the fulfillment
of or compliance by the Company with all covenants and
conditions hereof, and to the following additional
conditions:
(a) There shall be no outstanding objection
to any Transaction Agreement by the Company
or its counsel or any Purchaser or its
counsel.
(b) The Company shall not have disclosed
that the Offering Documents, or any amendment
thereof or supplement thereto, contains an
untrue statement of fact, which, in the
opinion of counsel to Agent, is material, or
omits to state a fact, which, in the opinion
of such counsel, is material and is required
to be stated therein, or is necessary to make
the statements therein, under the
circumstances in which they were made, not
misleading.
(c) Between the date hereof and the Closing
Date, the Company shall not have sustained
any loss on account of fire, explosion,
flood, accident, calamity, or any other cause
of such character as would materially
adversely affect its business or property
considered as an entire entity, whether or
not such loss is covered by insurance.
(d) There shall be no litigation instituted
or overtly threatened against the Company,
and there shall be no proceeding instituted
or threatened against the Company before or
by any federal or state commission,
regulatory body, or administrative agency, or
other governmental body, domestic or foreign,
wherein an unfavorable ruling, decision, or
finding would materially adversely affect the
business, franchises, license, permits,
operations, or financial condition or income
of the Company considered as an entity.
(e) Except as contemplated herein or as set
forth in the Offering Documents, during the
period subsequent to the most recent
financial statements contained in the
Offering Documents, if any, and prior to the
Closing Date, the Company (i) shall have
conducted its business in the usual and
ordinary manner as the same is being
conducted as of the date hereof and (ii)
except in the ordinary course of business,
the Company shall not have incurred any
liabilities or obligations (direct or
contingent) or disposed of any assets, or
entered into any material transaction, or
suffered or experienced any substantially
adverse change in its condition, financial or
otherwise. At the Closing Date, the equity
account of the Company shall be substantially
the same as reflected in the most recent
balance sheet contained in the Offering
Documents without considering the proceeds
from the sale of the Securities other than as
may be set forth in the Offering Documents.
(f) The authorization of the Securities by
the Company and all proceedings and other
legal matters incident thereto and to this
Agreement shall be reasonably satisfactory in
all respects to Agent and its counsel.
(g) The Company shall have furnished Agent a
copy of the Company opinion with respect to
the sufficiency of all corporate proceedings
and other legal matters relating to this
Agreement as Agent may reasonably require.
(h) The Company shall have furnished to Agent the
opinion, dated the Initial Closing, addressed to
Agent, from counsel to the Company, as required by
the Purchase Agreement.
(i) The Company shall have furnished to
Agent a copy of the Compliance Certificate
and the Secretary Certificate each dated as
of the Closing Date.
Section 4. Representations and Warranties of the
Company.
For the purpose of inducing Agent to enter into this
and perform this Agreement, the Company hereby
represents and warrants to and agrees with Agent as
follows:
Section 4.1 Corporation Condition.
The Company's condition is as described in its Offering
Documents, except for changes in the ordinary course of
business and normal year-end adjustments that are not
in the aggregate materially adverse to the Company.
The Offering Documents, taken as a whole, present
fairly the business and financial position of the
Company as of the Closing Date.
Section 4.2 No Material Adverse Change.
Except as may be reflected in or contemplated by the
Offering Documents, subsequent to the dates as of which
information is given in the Offering Documents, and
prior to the Closing Date, there shall not have been
any material adverse change in the condition, financial
or otherwise, or in the results of operations of the
Company or in its business taken as a whole.
Section 4.3 No Defaults.
Except as disclosed in the Offering Documents or in
writing to Agent, the Company is not in default in any
material respect in the performance of any material
obligation, agreement, or condition contained in any
debenture, note, or other evidence of indebtedness or
any indenture or loan agreement of the Company. The
execution and delivery of this Agreement, and the
consummation of the transactions herein contemplated,
and compliance with the terms of this Agreement, will
not conflict with, or result in, a breach of any of the
terms, conditions, or provisions of, or constitute a
default under, the Articles of Organization or by-laws
of the Company (in any respect that is material to the
Company), any material note, indenture, mortgage, deed
of trust, or other agreement or instrument to which the
Company is a party or by which the Company or any
property of the Company is bound, or to the Company's
knowledge, any existing law, order, rule, regulation,
writ, injunction, or decree of any government,
governmental instrumentality, agency, or body,
arbitration tribunal or court, domestic or foreign,
having jurisdiction over the Company or any property of
the Company. The consent, approval, authorization, or
order of any court or governmental instrumentality,
agency or body is not required for the consummation of
the transactions herein contemplated except such as may
be required under the Act or under the blue sky or
securities laws of any state or jurisdiction.
Section 4.4 Incorporation and Standing.
The Company is, and at the Closing Date will be, duly
formed and validly existing in good standing as a
corporation under the laws of the Commonwealth of
Massachusetts and with full power and authority
(corporate and other) to own its properties and conduct
its business, present and proposed, as described in the
Offering Documents; the Company, has full power and
authority to enter into this Agreement; and the Company
is duly qualified and in good standing as a foreign
entity in each jurisdiction in which the failure to so
qualify would have a material adverse effect on the
Company or its properties.
Section 4.5 Legality of Securities.
Prior to the Closing Date, the Securities will have
been duly and validly authorized and issued, will be
valid, binding and enforceable against the Company in
accordance with their terms, and will conform in all
material respects to the statements with regard thereto
contained in the Offering Documents.
Section 4.6 Legality of Conversion Shares.
The Common Stock into which the Securities are
convertible, when converted in accordance with the
Securities will be duly and validly issued and
outstanding, fully paid, and non-assessable and conform
in all material respects to the statements with regard
thereto contained in the Offering Documents.
Section 4.7 Litigation.
Except as set forth in the Offering Documents, there is
now, and at the Closing Date there will be, no action,
suit, or proceeding before any court or governmental
agency, authority or body pending or, to the knowledge
of the Company, threatened, which might result in
judgments against the Company not adequately covered by
insurance or which collectively might result in any
material adverse change in the condition (financial or
otherwise) or business of the Company or which would
materially adversely affect the properties or assets of
the Company.
Section 4.8 Finders.
The Company does not know of any outstanding claims for
services in the nature of a finder's fee or origination
fees with respect to the sale of the Securities
hereunder for which Agent may be responsible, and the
Company will indemnify Agent from any liability for
such fees by any party who has a claim for such
compensation from the Company and for which person
Agent is not legally responsible (provided however,
that Agent and the Company acknowledge that any finders
fees due to Rancho Santa Fe Capital shall be the sole
responsibility of Agent).
Section 4.9 Tax Returns.
The Company has filed all federal and state tax returns
which are required to be filed, and has paid all taxes
shown on such returns and on all assessments received
by it to the extent such taxes have become due. All
taxes with respect to which the Company is obligated
have been paid or adequate accruals have been set up to
cover any such unpaid taxes.
Section 4.10 Authority.
The execution and delivery by the Company of this
Agreement have been duly authorized by all necessary
action, and this Agreement is the valid, binding, and
legally enforceable obligation of the Company subject
to standard qualifications as to the availability of
equitable remedies, the effect of bankruptcy and other
laws relating to the protection of debtors and public
policy opinions promulgated by the Commission with
respect to indemnification against liabilities under
the Act.
Section 4.11 Actions by the Company.
The Company will not take any action which will impair
the effectiveness of the transactions contemplated by
this Agreement.
Section 5. Covenants of the Company.
The Company covenants and agrees with Agent that:
Section 5.1 Restrictions on Amendments.
After the date hereof, the Company will not at any
time, prepare and distribute any amendment or
supplement to the Offering Documents, of which
amendment or supplement Agent shall not previously have
been advised and Agent and its counsel furnished with a
copy within a reasonable time period prior to the
proposed adoption thereof, or to which Agent shall have
reasonable objected in writing on the ground that it is
not in compliance with the Act or the Rules and
Regulations (if applicable).
Section 5.2 Expenses of Offering.
The Company will pay, upon consummation of the
Transaction, all costs and expenses incident to the
Transaction Agreements, including all expenses incident
to the authorization of the Securities, their issue and
delivery to the Escrow Agent, any original issue taxes
in connection therewith, all transfer taxes, if any,
incident to the initial sale of the Securities, the
fees and expenses of Agent's and the Company's counsel
(except as provided below), and the cost of
reproduction and furnishing to Agent copies of the
Offering Documents as herein provided and as
specifically set forth in Section 8.7 of the Purchase
Agreement.
Section 5.3 Availability of Information.
Prior to the Closing Date, the Company will cooperate
with Agent in such investigation as it may make or
cause to be made of all of the properties, business,
and operations of the Company in connection with the
Offering of the Securities. The Company will make
available to it in connection therewith such
information in its possession as Agent may reasonably
request and will make available to Agent such persons
as Agent shall deem reasonably necessary and
appropriate in order to verify or substantiate any such
information so supplied.
Section 5.4 Reports and Filings.
The Company shall be responsible for making any and all
filings required by the blue sky authorities and
filings required by the laws of the jurisdictions in
which the subscribers who are accepted for purchase of
Securities are located, if any. Agent shall assist
Company in this respect, but such filings shall be the
responsibility of Company.
Section 5.5 No Undisclosed Events, Liabilities,
Developments, or Circumstances.
The Company's condition is as described in its Offering
Documents, except for changes in the ordinary course of
business and normal year-end adjustments that are not
individually or in the aggregate materially adverse to
the Company. The Offering Documents, taken as a whole,
will present fairly the business and financial position
of the Company as of each Closing Date.
Section 5.6 No Material Adverse Change.
Except as may be reflected in or contemplated by the
Offering Documents, subsequent to the dates as of which
information is given in the Offering Documents, and
prior to each Closing Date, there shall not have been
any material adverse change in the condition,
financial, or otherwise, or in the results of
operations of the Company or in its business taken as a
whole.
Section 6. Indemnification.
Section 6.1 Indemnification of Agent.
The Company agrees to indemnify and hold harmless
Agent, each person who controls Agent within the
meaning of Section 15 of the Act and Agent's employees,
accountants, attorneys and agents (the "Agent's
Indemnitees") against any and all losses, claims,
damages, or liabilities, joint or several, to which
they or any of them may become subject under the Act or
any other statute or at common law for any legal or
other expenses (including the costs 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, damages, liabilities, and litigation
arise out of or are based upon any untrue statement of
material fact contained in the Offering Documents or
any amendment or supplement thereto or any application
or other document filed in any state or jurisdiction in
order to qualify the Securities under the Blue Sky or
securities laws thereof, or the omission to state
therein a material fact required to be stated therein
or necessary to make the statements therein, under the
circumstances under which they were made, not
misleading, all as of the date of the Offering
Documents or of such amendment as the case may be;
provided however, that the indemnity agreement
contained in this Section 6.1 shall not apply to amount
paid in settlement of any such litigation, if such
settlements are made without the consent of the
Company, nor shall it apply to Agent's Indemnitees in
respect to any such losses, claims, damages, or
liabilities 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 the Company by Agent
specifically for use in connection with the preparation
of the Offering Documents or any such amendment or
supplement thereto or any application or other document
filed in any state or jurisdiction in order to qualify
the Securities under the Blue Sky or securities law
thereof. This indemnity agreement is in addition to
any other liability which the Company may otherwise
have to Agent's Indemnitees. Agent's Indemnitees
agree, within ten (10) days after the receipt by them
of written notice of the commencement of any action
against them in respect to which indemnity may be
sought from the Company under this Section 6.1, to
notify the Company in writing of the commencement of
such action; provided however, that the failure of
Agent's Indemnitees to notify the Company of any such
action shall not relieve the Company from any liability
which it may have to Agent's Indemnitees on account of
the indemnity agreement contained in this Section 6.1,
and further shall not relieve the Company from any
other liability which it may have to Agent's
Indemnitees, and if Agent's Indemnitees shall notify
the Company of the commencement thereof, the Company
shall be entitled to participate in (and, to the extent
that the Company shall wish, to direct) the defense
thereof at its own expense, but such defense shall be
conducted by counsel of recognized standing and
reasonably satisfactory to Agent's Indemnitees,
defendant or defendants, in such litigation. The
Company agrees to notify Agent's Indemnitees promptly
of the commencement of any litigation or proceedings
against the Company or any of the Company's officers or
directors of which the Company may be advised in
connection with the issue and sale of any of the
Securities and to furnish to Agent's Indemnitees, at
their request, to provide copies of all pleadings
therein and to permit the Company's Indemnitees to be
observers therein and apprise Agent's Indemnitees of
all developments therein, all at the Company's expense.
Section 6.2 Indemnification of Company.
Agent agrees, in the same manner and to the same extent
as set forth in Section 6.1 above, to indemnify and
hold harmless the Company, and the Company's and
Company's employees, accountants, attorneys, and agents
(the "Company's Indemnitees") with respect to (a) any
statement in or omission from the Offering Documents or
any amendment or supplement thereto or any application
or other document filed in any state or jurisdiction in
order to qualify the Securities under the Blue Sky or
securities laws thereof, or any information furnished
pursuant to Section 2.2 hereof, if such statement or
omission was made in reliance upon information
furnished in writing to the Company by Agent on its
behalf specifically for use in connection with the
preparation thereof or supplement thereto, or (b) any
untrue statement of a material fact made by Agent or
its agents not based on statements in the Offering
Documents or authorized in writing by the Company, or
with respect to any misleading statement made by Agent
or its agents resulting from the omission of material
facts which misleading statement is not based upon the
Offering Documents, or information furnished in writing
by the Company or, (c) any breach of any
representation, warranty, or covenant made by Agent in
this Agreement. Agent's liability hereunder shall be
limited to the amount received by it for acting as
Agent in connection with the Offerings. 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 the commencement of any action
in respect of which indemnity may be sought from Agent,
the Company's Indemnitees shall have the same
obligation to give notice as set forth in Section 6.1
above, subject to the same loss of indemnity in the
event such notice is not given, and 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 of recognized standing reasonably
satisfactory to the Company. Agent agrees to notify
the Company's Indemnitees and, at their request, to
provide copies of all pleadings therein and to permit
the Company's Indemnitees to be observers therein and
apprise them of all the developments therein, all at
Agent's expense.
Section 7. Termination.
Section 7.1 Termination by Agent.
This Agreement may be terminated at any time during the
Offering Period by Agent by written notice to the
Company, if the Company shall have failed or been
unable to comply with any of the terms, conditions, or
provisions of the Transaction Agreements to be
performed, complied with, or fulfilled by the Company
within the respective times, if any, herein provided
for, unless compliance therewith or performance or
satisfaction thereof shall have been expressly waived
by Agent in writing.
Section 7.2 Termination by Company.
This Agreement may be terminated by the Company at the
conclusion of the Offering Period by notice to Agent if
Agent shall have failed or been unable to comply with
any of the terms, conditions, or provisions of this
Agreement to be performed, complied with, or fulfilled
by Agent within the respective times, if any, herein
provided for, unless compliance therewith or
performance or satisfaction thereof shall have been
expressly waived by the Company in writing.
Section 7.3 Termination for Force Majeure Events.
This Agreement may be terminated by Agent by notice to
the Company at any time, if, in the reasonable, good
faith judgment of Agent, payment for and delivery of
the Securities is rendered impracticable or inadvisable
because: (a) additional material governmental
restrictions not in force and effect on the date hereof
shall have been imposed upon trading in securities
generally; (b) a war or other national calamity shall
have occurred; or (c) the condition of the market
(either generally or with reference to the sale of the
Securities to be offered hereby) or the condition of
any matter affecting the Company or any other
circumstance is such that it would be undesirable,
impracticable or inadvisable, in the judgment of Agent,
to proceed with this Agreement or with the Offering.
Section 7.4 Termination without Liability.
Any termination of this 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 thereto, except that the Company shall remain
obligated to pay the costs and expenses provided to be
paid by it specified in Sections 1.3 and 5.2, and the
Company and Agent shall be obligated to pay,
respectively, all losses, claims, damages, or
liabilities, joint or several, under Section 6.1 in the
case of the Company and Section 6.2 in the case of
Agent.
Section 8. Miscellaneous.
Section 8.1 Notices.
Whenever notice is required by the provisions of this
Agreement to be given, such notice shall be in writing,
addressed:
If to Company:
Cambex Corporation
360 Second Avenue
Waltham, Massachusetts 02451
Attention: Peter Kruy,
Executive Vice President
Tel: (781) 890-6000
Fax: (781) 890-2899
With a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: John E. Beard
Tel: (617) 951-7000
Fax: (617) 951-7050
If to Agent:
Sovereign Capital Advisors,
LLC
3340 Peachtree Road, N.E.
Suite 2265
Atlanta, Georgia 30326
Attention: Paul Hamm
Tel: (404) 814-3737
Fax: (404) 812-3738
With a copy to:
Balboni Law Group LLC
3475 Lenox Road
Suite 990
Atlanta, Georgia 30326
Attention: Gerardo M. Balboni
II, Esq.
Tel: (404) 812-3100
Fax: (404) 812-3101
8.2 Benefit.
This Agreement is made solely for the benefit of Agent
and the Company, their respective officers and
directors and any controlling person referred to in
Section 15 of the Act and their respective successors
and assigns, and no other person may acquire or have
any right under or by virtue of this Agreement,
including, without limitation, the holders of any
Securities. The term "successor" or the term
"successors and assigns" as used in this Agreement
shall not include any purchasers, as such, of any of
the Securities.
8.3 Survival.
The respective indemnities, agreements,
representations, warranties, covenants and other
statements of the Company and Agent, or the officers,
directors or controlling persons of the Company and
Agent as set forth in or made pursuant to this
Agreement and the indemnity agreements of the Company
and Agent contained in Section 7 hereof shall survive
and remain in full force and effect, regardless of (a)
any investigation made by or on behalf of the Company
or Agent or any such officer, director or controlling
person of the Company or of Agent; (b) delivery of or
payment for the Securities; or (c) the Closing Date,
and any successor of the Company or Agent or any
controlling person, officer or director thereof, as the
case may be, shall be entitled to the benefits hereof.
8.4 Governing Law.
The validity, interpretation, and construction of this
Agreement will be governed by the laws of the
Commonwealth of Massachusetts without regard to its
principles of conflict of laws. Any dispute or
controversy between the parties arising in connection
with this Agreement or the subject matter contemplated
by this Agreement shall be resolved by arbitration
before a three-member panel of the American Arbitration
Association in accordance with the commercial
arbitration rules of said forum and the Federal
Arbitration Act, 9 U.S.C. 1 et seq., with the resulting
award being final and conclusive. Said arbitrators
shall be empowered to award all forms of relief and
damaged claimed, including, but not limited to,
attorney's fees, expenses of litigation and
arbitration, exemplary damages, and prejudgment
interest. The parties further agree that any
arbitration action or other action between them shall
be brought by one party against the other shall be
brought in any appropriate state court or any federal
Court located in the County where the party against
whom the action is brought is principally located, and
both parties agree that such courts shall have
exclusive jurisdiction of such case or controversy
arising under or in connection with this Agreement and
shall be a proper forum in which to adjudicate such
case or controversy. The parties consent to the
jurisdiction of such courts.
8.5 Counterparts.
This Agreement may be executed in any number of
counterparts, each of which may be deemed an original
and all of which together will constitute one and the
same instrument.
8.6 Confidential Information.
All confidential financial or business information
(except publicly available or freely usable material
otherwise obtained from another source) respecting
either party will be used solely by the other party in
connection with the within transactions, be revealed
only to employees or contractors of such other party
who are necessary to the conduct of such transactions,
and be otherwise held in strict confidence.
8.7 Public Announcements.
Prior to the Closing Date, neither party hereto will
issue any public announcement concerning the within
transactions without the approval of the other party.
8.8 Finders.
The parties acknowledge that except as specifically set
forth in Section 4.8 hereof, no person has acted as a
finder in connection with the transactions contemplated
herein and each will agree to indemnify the other with
respect to any other claim for a finder's fee in
connection with the Offering.
8.9 Recitals.
The recitals to this Agreement are a material part
hereof, and each recital is incorporated into this
Agreement by reference and made apart of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly caused
this Agreement to be executed as of the day and year
first above written.
[Signatures on the following page]
COMPANY SIGNATURE PAGE
TO
PLACEMENT AGENT AGREEMENT
THE COMPANY:
CAMBEX CORPORATION
By: /s/ Peter Kruy
Peter Kruy,
Executive Vice
President
AGENT SIGNATURE PAGE
TO
PLACEMENT AGENT AGREEMENT
AGENT:
SOVEREIGN CAPITAL
ADVISORS, LLC
By:
Don Odom
By: /s/ Paul Hamm
Paul Hamm