Exhibit 10.3
Organitech USA, Inc.
PLACEMENT AGENT AGREEMENT
Dated as of: November 3, 2003.
The undersigned, Organitech USA, Inc., a Delaware corporation (the "COMPANY"),
hereby agrees with Charleston Capital Corporation (the "PLACEMENTAGENT") and
Dutchess Private Equities Fund, L.P., a Delaware Limited Partnership (the
"INVESTOR") as follows:
1. OFFERING. The Company hereby engages the Placement Agent to act as its
exclusive placement agent in connection with the Investment Agreement
dated November 20, 2003 (the "INVESTMENT AGREEMENT") pursuant to which the
Company may issue and sell to the Investor, from time to time, and the
Investor shall purchase from the Company (the "OFFERING") up to Five
Million Dollars ($5,000,000) of the Company's Class A Voting Common Stock
(the "COMMITMENT AMOUNT"), par value $0.01 per share (the "COMMON STOCK"),
at price per share equal to the Purchase Price, as that term is defined in
the Investment Agreement. Pursuant to the terms hereof, the Placement
Agent shall render consulting services to the Company with respect to the
Investment Agreement and shall be available for consultation in connection
with the advances to be requested by the Company pursuant to the
Investment Agreement. All capitalized terms used herein and not otherwise
defined herein shall have the same meaning ascribed to them as in the
Investment Agreement. The Investor will be granted certain registration
rights with respect to the Common Stock as more fully set forth in a
Registration Rights Agreement between the Company and the Investor dated
November 20, 2003 (the "REGISTRATION RIGHTS AGREEMENT"). The documents to
be executed and delivered in connection with the Offering, including, but
not limited, to this Agreement, the Investment Agreement, and the
Registration Rights Agreement, and any Prospectus or other disclosure
document ( including all amendments and supplements ) utilized in
connection with the Offering are referred to sometimes hereinafter
collectively as the "OFFERING MATERIALS." The Company's Common Stock is
sometimes referred to hereinafter as the "SECURITIES." The Placement Agent
shall not be obligated to sell any Securities and this Offering by the
Placement Agent shall be solely on a "best efforts basis."
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT AGENT.
A. The Placement Agent represents, warrants and covenants as follows:
(i) The Placement Agent has the necessary power to enter into this
Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Placement Agent of this Agreement
and the consummation of the transactions contemplated herein will not
result in any violation of, or be in conflict with, or constitute a
default under, any agreement or instrument to which the Placement Agent is
a party or by which the Placement Agent or its properties are bound, or
any judgment, decree, order or, to the Placement Agent's knowledge, any
statute, rule or regulation applicable to the Placement Agent. This
Agreement when executed and delivered by the Placement Agent, will
constitute the legal, valid and binding obligations of the Placement
Agent, enforceable in accordance with their respective terms, except to
the
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extent that (a) the enforceability hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws from
time to time in effect and affecting the rights of creditors generally,
(b) the enforceability hereof or thereof is subject to general principles
of equity, or (c) the indemnification provisions hereof or thereof may be
held to be in violation of public policy.
(iii) Upon receipt and execution of this Agreement the Placement Agent
will promptly forward copies of this Agreement to the Company or its
counsel and the Investor or its counsel.
(iv) The Placement Agent will not take any action that it reasonably
believes would cause the Offering to violate the provisions of the
Securities Act of 1933, as amended (the "1933 ACT"), the Securities
Exchange Act of 1934 (the "1934 ACT"), the respective rules and
regulations promulgated there under (the "RULES AND REGULATIONS") or
applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all reasonable efforts to determine (a)
whether the Investor is an Accredited Investor and (b) that any
information furnished by the Investor is true and accurate. The Placement
Agent shall have no obligation to insure that (x) any check, note, draft
or other means of payment for the Common Stock will be honored, paid or
enforceable against the Investor in accordance with its terms, or (y)
subject to the performance of the Placement Agent's obligations and the
accuracy of the Placement Agent's representations and warranties
hereunder, (1) the Offering is exempt from the registration requirements
of the 1933 Act or any applicable state "Blue Sky" law or (2) the Investor
is an Accredited Investor.
(vi) The Placement Agent is a member of the National Association of
Securities Dealers, Inc., and is a broker-dealer registered as such under
the 1934 Act and under the securities laws of the states in which the
Securities will be offered or sold by the Placement Agent unless an
exemption for such state registration is available to the Placement Agent.
The Placement Agent is in compliance with all material rules and
regulations applicable to the Placement Agent generally and applicable to
the Placement Agent's participation in the Offering.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
A. The Company makes to the Placement Agent all the representations and
warranties it makes to the Investor in the Investment Agreement and, in
addition, represents and warrants as follows:
(i) The execution, delivery and performance of each of this Agreement, the
Investment Agreement and the Registration Rights Agreement has been or
will be duly and validly authorized by the Company and is, and with
respect to this Agreement, the Investment Agreement and the Registration
Rights Agreement will each be, a valid and binding agreement of the
Company, enforceable in accordance with its respective terms, except to
the extent that (a) the enforceability hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws from
time to time in effect and affecting the rights of creditors generally,
(b) the enforceability hereof or thereof is subject to general principles
of equity or (c) the indemnification provisions hereof or thereof may be
held to be in violation of public policy. The Securities to be issued
pursuant to the transactions contemplated by this Agreement and the
Investment Agreement have been
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duly authorized and, when issued and paid for in accordance with (x) this
Agreement, the Investment Agreement and the certificates/instruments
representing such Securities, (y) will be valid and binding obligations of
the Company, enforceable in accordance with their respective terms, except
to the extent that (1) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws from
time to time in effect and affecting the rights of creditors generally,
and (2) the enforceability thereof is subject to general principles of
equity. All corporate action required to be taken for the authorization,
issuance and sale of the Securities has been duly and validly taken by the
Company.
(ii) The Company has a duly authorized, issued and outstanding
capitalization as set forth herein and in the Investment Agreement. The
Company is not a party to or bound by any instrument, agreement or other
arrangement providing for it to issue any capital stock, rights, warrants,
options or other securities, except for this Agreement, the agreements
described herein and as described in the Investment Agreement, dated the
date hereof and the agreements described therein. All issued and
outstanding securities of the Company, have been duly authorized and
validly issued and are fully paid and non-assessable; the holders thereof
have no rights of rescission or preemptive rights with respect thereto and
are not subject to personal liability solely by reason of being security
holders; and none of such securities were issued in violation of the
preemptive rights of any holders of any security of the Company. As of the
date hereof, the authorized capital stock of the Company consists of (i)
80,000,000 shares of Common Stock, .001 par value per share, of which as
of the date hereof, 16,048,000 shares are issued and outstanding;
10,000,000 shares of Preferred Stock, $.10 par value per share of which no
shares are issued and outstanding; (as of November 17th , 2003, 1,650,000
share are held in escrow for BLM NV.) Additionally, 526,905 shares of
common stock are reserved for issuance pursuant to options, warrants and
other convertible securities.
(iii) The Common Stock to be issued in accordance with this Agreement and
the Investment Agreement has been duly authorized and when issued and paid
for in accordance with this Agreement, the Investment Agreement and the
certificates/instruments representing such Common Stock, will be validly
issued, fully-paid and non-assessable; the holders thereof will not be
subject to personal liability solely by reason of being such holders; such
Securities are not and will not be subject to the preemptive rights of any
holder of any security of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
A. The Investor makes to the Placement Agent all the representations and
warranties it makes to the Company in the Investment Agreement and, in
addition represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter into this Agreement and
to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Investor of this Agreement and the
consummation of the transactions contemplated herein will not result in
any violation of, or be in conflict
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with, or constitute a default under, any agreement or instrument to which
the Investor is a party or by which the Investor or its properties are
bound, or any judgment, decree, order or, to the Investor's knowledge, any
statute, rule or regulation applicable to the Investor. This Agreement
when executed and delivered by the Investor, will constitute the legal,
valid and binding obligations of the Investor, enforceable in accordance
with their respective terms, except to the extent that (a) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally, (b) the enforceability hereof
or thereof is subject to general principles of equity, or (c) the
indemnification provisions hereof or thereof may be held to be in
violation of public policy.
(iii) the Investor is not, and will not be, as a result of the
transactions contemplated by the Offering Materials a "dealer" within the
meaning of the Securities Exchange Act of 1934 and applicable federal and
state securities laws and regulations. The Investor covenants that in this
respect it is and will remain in compliance with the requirements of
applicable "no action" rulings of the U.S. Securities Exchange Commission.
(iv) The Investor will promptly forward copies of any and all due
diligence questionnaires compiled by the Investor to the Placement Agent.
5. CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY.
The Company covenants and agrees at its expense and without any expense to
the Placement Agent as follows:
A. To advise the Placement Agent of any material adverse change in the
Company's financial condition, prospects or business or of any development
materially affecting the Company or rendering untrue or misleading any
material statement in the Offering Materials occurring at any time as soon
as the Company is either informed or becomes aware thereof.
B. To use its commercially reasonable efforts to cause the Common Stock
issuable in connection with the Equity Line of Credit to be qualified or
registered for sale on terms consistent with those stated in the
Registration Rights Agreement and under the securities laws of such
jurisdictions as the Placement Agent and the Investor shall reasonably
request. Qualification, registration and exemption charges and fees shall
be at the sole cost and expense of the Company.
C. Upon written request, to provide and continue to provide the Placement
Agent and the Investor copies of all quarterly financial statements and
audited annual financial statements prepared by or on behalf of the
Company, other reports prepared by or on behalf of the Company for public
disclosure and all documents delivered to the Company's stockholders.
D. To make available, during the registration period of the Investment
Agreement, to the Placement Agent upon the Placement Agent's request,
(i) within forty five (45) days, a statement of its income for each such
quarterly period, and its balance sheet and a statement of changes in
stockholders' equity as of the end of such quarterly period, all in
reasonable detail, certified by its principal financial or accounting
officer;
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(ii) within ninety (90) days after the close of each fiscal year, its
balance sheet as of the close of such fiscal year, together with a
statement of income, a statement of changes in stockholders' equity and a
statement of cash flow for such fiscal year, such balance sheet, statement
of income, statement of changes in stockholders' equity and statement of
cash flow to be in reasonable detail and accompanied by a copy of the
certificate or report thereon of independent auditors if audited financial
statements are prepared; and
(iii) a copy of all documents, reports and information furnished to its
stockholders at the time that such documents, reports and information are
furnished to its stockholders.
(iv) a copy of all documents, reports and information furnished to the
Investor at the time that such documents, reports and information are
furnished to the Investor.
E. To comply with the terms of the Offering Materials.
F. To ensure that any transactions between or among the Company, or any of
its officers, directors and affiliates be on terms and conditions that are
no less favorable to the Company, than the terms and conditions that would
be available in an "arm's length" transaction with an independent third
party.
6. INDEMNIFICATION.
A. The Company hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent and each person controlling, controlled by or under
common control with the Placement Agent within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act or the SEC's Rules and
Regulations promulgated there under (the "Rules and Regulations"),
harmless from and against any and all loss, claim, damage, liability, cost
or expense whatsoever (including, but not limited to, any and all
reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any
action, suit or proceeding, including any inquiry or investigation,
commenced or threatened, or any claim whatsoever or in appearing or
preparing for appearance as a witness in any action, suit or proceeding,
including any inquiry, investigation or pretrial proceeding such as a
deposition) to which the Placement Agent or such indemnified person of the
Placement Agent may become subject under the 1933 Act, the 1934 Act, the
Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (a)
Section 4 of this Agreement, (b) the Offering Materials (except those
written statements relating to the Placement Agent given by an indemnified
person for inclusion therein), (c) any application or other document or
written communication executed by the Company or based upon written
information furnished by the Company filed in any jurisdiction in order to
qualify the Common Stock under the securities laws thereof, or any state
securities commission or agency; (ii) the omission or alleged omission
from documents described in clauses (a), (b) or (c) above of a material
fact required to be stated therein or necessary to make the statements
therein not misleading; or (iii) the breach of any representation,
warranty, covenant or agreement made by the Company in this Agreement. The
Company further agrees that upon demand by an indemnified person, at any
time or from time to time, it will promptly reimburse such indemnified
person for any loss, claim, damage, liability, cost or expense actually
and
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reasonably paid by the indemnified person as to which the Company has
indemnified such person pursuant hereto. Notwithstanding the foregoing
provisions of this Paragraph 6(A), any such payment or reimbursement by
the Company of fees, expenses or disbursements incurred by an indemnified
person in any proceeding in which a final judgment by a court of competent
jurisdiction (after all appeals or the expiration of time to appeal) is
entered against the Placement Agent or such indemnified person based upon
specific finding of fact as to the Placement Agent or such indemnified
person's gross negligence or willful misfeasance will be promptly repaid
to the Company.
B. The Placement Agent hereby agrees that it will indemnify and hold the
Company and each officer, director, shareholder, employee or
representative of the Company, and each person controlling, controlled by
or under common control with the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Company or such indemnified person of
the Company may become subject under the 1933 Act, the 1934 Act, the Rules
and Regulations, or any other federal or state law or regulation, common
law or otherwise, arising out of or based upon (i) the conduct of the
Placement Agent or its officers, employees or representatives in willful
violation of any of such laws and regulations while acting as Placement
Agent for the Offering or (ii) the material breach of any representation,
warranty, covenant or agreement made by the Placement Agent in this
Agreement (iii) any false or misleading information provided to the
Company by one of the Placement Agent's indemnified persons.
C. The Investor hereby agrees that it will indemnify and hold the Placement
Agent and each officer, director, shareholder, employee or representative
of the Placement Agent, and each person controlling, controlled by or
under common control with the Placement Agent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any
and all reasonable legal fees and other expenses and disbursements
incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Placement Agent or such indemnified
person of the Placement Agent may become subject under the 1933 Act, the
1934 Act, the Rules and Regulations, or any other federal or state law or
regulation, common law or otherwise, arising out of or based upon (i) the
conduct of the Investor or its officers, employees or representatives in
its acting as the Investor for the Offering or (ii) the material breach of
any representation, warranty, covenant or agreement made by the Investor
in the Offering Materials (iii) any false or misleading information
provided to the Placement Agent by the Investor or one of the Investor's
indemnified persons.
D. The Placement Agent hereby agrees that it will indemnify and hold the
Investor and each officer, director, shareholder, employee or
representative of the Investor, and each person
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controlling, controlled by or under common control with the Investor
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act or the Rules and Regulations, harmless from and against any and all
loss, claim, damage, liability, cost or expense whatsoever (including, but
not limited to, any and all reasonable legal fees and other expenses and
disbursements incurred in connection with investigating, preparing to
defend or defending any action, suit or proceeding, including any inquiry
or investigation, commenced or threatened, or any claim whatsoever or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding
such as a deposition) to which the Investor or such indemnified person of
the Investor may become subject under the 1933 Act, the 1934 Act, the
Rules and Regulations, or any other federal or state law or regulation,
common law or otherwise, arising out of or based upon (i) the conduct of
the Placement Agent or its officers, employees or representatives in
willful violation of any of such laws and regulations while acting as the
Placement Agent for the Offering or (ii) the material breach of any
representation, warranty, covenant or agreement made by the Placement
Agent in this Agreement (iii) any false or misleading information provided
to the Investor by one of the Placement Agent's indemnified persons.
E. Promptly after receipt by an indemnified party of notice of commencement
of any action covered by Section 6(A), (B), (C) or (D), the party to be
indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified
party to so notify the indemnifying party shall not relieve the
indemnifying party of its obligation to indemnify any other indemnified
party that has given such notice and shall not relieve the indemnifying
party of any liability outside of this indemnification if not materially
prejudiced thereby. In the event that any action is brought against the
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent it may desire, to assume and control the
defense thereof with counsel chosen by it which is reasonably acceptable
to the indemnified party. After notice from the indemnifying party to such
indemnified party of its election to so assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
Section 6(A), (B), (C), or (D) for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof, but the indemnified party may, at its own expense,
participate in such defense by counsel chosen by it, without, however,
impairing the indemnifying party's control of the defense. Subject to the
proviso of this sentence and notwithstanding any other statement to the
contrary contained herein, the indemnified party or parties shall have the
right to choose its or their own counsel and control the defense of any
action, all at the expense of the indemnifying party if, (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action at the
expense of the indemnifying party, or (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to such indemnified
party to have charge of the defense of such action within a reasonable
time after notice of commencement of the action, or (iii) such indemnified
party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case
the indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses of one additional counsel shall be
borne by the indemnifying party; provided, however, that the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstance, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys
at any time for all
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such indemnified parties. No settlement of any action or proceeding
against an indemnified party shall be made without the consent of the
indemnifying party.
F. In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in Section 6 is due in
accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the
Placement Agent and the Investor shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with the investigation or defense of
same) which the other may incur in such proportion so that the Company,
the Placement Agent and the Investor shall be responsible for such percent
of the aggregate of such losses, claims, damages and liabilities as shall
equal the percentage of the gross proceeds paid to each of them.;
provided, however, that no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(F), any person
controlling, controlled by or under common control with the Placement
Agent, or any partner, director, officer, employee, representative or any
agent of any thereof, shall have the same rights to contribution as the
Placement Agent and each person controlling, controlled by or under common
control with the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and each officer of the Company and each
director of the Company shall have the same rights to contribution as the
Company and each person controlling, controlled by or under common control
with the Investor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and each member of the general partner of the
Investor shall have the same rights to contribution as the Company. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against the other
party under this Section 6(F), notify such party from whom contribution
may be sought, but the omission to so notify such party shall not relieve
the party from whom contribution may be sought from any obligation they
may have hereunder or otherwise if the party from whom contribution may be
sought is not materially prejudiced thereby. The indemnity and
contribution agreements contained in this Section 6 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any indemnified person or any termination of this Agreement.
7. FEES. The Company hereby agrees to pay the Placement Agent 1% for the
gross proceeds from each Put with a maximum of ten thousand dollars
($10,000). It is hereby agreed that the Agent's fee shall be paid on a pro
rata basis, as a relative proportionate part of each withdrawal the
company actually executes. Each proportionate fee shall be paid within 15
days of the actual withdrawal of money.
8. PAYMENT OF EXPENSES. The Company hereby agrees to bear all of the expenses
in connection with the Offering, including, but not limited to the
following: filing fees, printing and duplicating costs, advertisements,
postage and mailing expenses with respect to the transmission of Offering
Materials, registrar and transfer agent fees, and expenses, fees of the
Company's counsel and accountants, issue and transfer taxes, if any. The
Company agrees to bear all the reasonable expenses of the Placement Agent
in performing its services under this Agreement including but not limited
to the fees and expenses of counsel. All expenses bigger then 50 US$ shall
be authorized by the company in advance.
9. CONDITIONS OF CLOSING. The Closing shall be held at the offices of the
Investor or its counsel. The obligations of the Placement Agent hereunder
shall be subject to the
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continuing accuracy of the representations and warranties of the Company
herein as of the date hereof and as of the Date of Closing (the "Closing
Date") with respect to the Company as if it had been made on and as of
such Closing Date; the accuracy on and as of the Closing Date of the
statements of the officers of the Company made pursuant to the provisions
hereof; and the performance by the Company on and as of the Closing Date
of its covenants and obligations hereunder and to the following further
conditions:
A. Upon the effectiveness of a registration statement in accordance with the
Investment Agreement, the Placement Agent shall receive the opinions of
Counsel to the Company and of the Investor, dated as of the date thereof,
which opinion shall be in form and substance reasonably satisfactory to
the Investor, the Company, their counsel and the Placement Agent.
B. At or prior to the Closing, the Placement Agent shall have been furnished
such documents, certificates and opinions as it may reasonably require for
the purpose of enabling them to review or pass upon the matters referred
to in this Agreement and the Offering Materials, or in order to evidence
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions herein contained.
C. At and prior to the Closing, (i) there shall have been no material adverse
change nor development involving a prospective change in the condition or
prospects or the business activities, financial or otherwise, of the
Company from the latest dates as of which such condition is set forth in
the Offering Materials; (ii) there shall have been no transaction, not in
the ordinary course of business except the transactions pursuant to the
Investment Agreement entered into by the Company which has not been
disclosed in the Offering Materials or to the Placement Agent in writing;
(iii) except as set forth in the Offering Materials, the Company shall not
be in default under any provision of any instrument relating to any
outstanding indebtedness for which a waiver or extension has not been
otherwise received; (iv) except as set forth in the Offering Materials,
the Company shall not have issued any securities (other than those to be
issued as provided in the Offering Materials) or declared or paid any
dividend or made any distribution of its capital stock of any class and
there shall not have been any change in the indebtedness (long or short
term) or liabilities or obligations of the Company (contingent or
otherwise) and trade payable debt; (v) no material amount of the assets of
the Company shall have been pledged or mortgaged, except as indicated in
the Offering Materials; and (v) no action, suit or proceeding, at law or
in equity, against the Company or affecting any of its properties or
businesses shall be pending or threatened before or by any court or
federal or state commission, board or other administrative agency,
domestic or foreign, wherein an unfavorable decision, ruling or finding
could materially adversely affect the businesses, prospects or financial
condition or income of the Company, except as set forth in the Offering
Materials.
D. . At Closing, the Placement Agent shall receive a certificate of the
Company signed by an executive officer and chief financial officer, dated
as of the applicable Closing, to the effect that the conditions set forth
in subparagraph (C) above have been satisfied and that, as of the
applicable closing, the representations and warranties of the Company set
forth herein are true and correct.
10. TERMINATION. This Agreement shall be co-terminus with, and terminate upon
the same terms and conditions as those set forth in, the Investment
Agreement. The rights of the Investor and the obligations of the Company
under the Registration Rights Agreement, and
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the rights of the Placement Agent and the obligations of the Company shall
survive the termination of this Agreement unabridged for a period of
twenty-four (24) months after the Closing Date.
11. MISCELLANEOUS. A. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
which shall be deemed to be one and the same instrument. B. Any notice
required or permitted to be given hereunder shall be given in writing and
shall be deemed effective when deposited in the United States mail,
postage prepaid, or when received if personally delivered or faxed (upon
confirmation of receipt received by the sending party), addressed as
follows:
If to Placement Agent, to:
Charleston Capital Corporation
Attn: Ara Proudian, President
216 East 45th Street, 7th Floor
New York, New York 10017
(800) 826-2622 Fax: (212) 244-6955
If to the Company, to:
Organitech USA, Inc.
Attention: Lior Hessel, CEO
PO Box 700
Yoqneam 20692 Israel
Telephone: 972-4-959-0515
Facsimile: 972-4-959-0514
If to the Investor:
Dutchess Private Equities fund, LP
312 Stuart St.
Boston, MA 02116
Tel: (617) 960-3582
Fax: (617) 960-3772
or to such other address of which written notice is given to the others.
C. This Agreement shall be governed by and construed in all respects under
the laws of the State of Delaware, without reference to its conflict of
laws rules or principles. Any suit, action, proceeding or litigation
arising out of or relating to this Agreement shall be brought and
prosecuted in such federal or state court or courts located within the
Commonwealth of Massachusetts as provided by law. The parties hereby
irrevocably and unconditionally consent to the jurisdiction of each such
court or courts located within the Commonwealth of Massachusetts and to
service of process by registered or certified mail, return receipt
requested, or by any other manner provided by applicable law, and hereby
irrevocably and unconditionally waive any right to claim that any suit,
action, proceeding or litigation so commenced has been commenced in an
inconvenient forum.
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D. This Agreement and the other agreements referenced herein contain the
entire understanding between the parties hereto and may not be modified or
amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
E. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any
other provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
ORGANITECH USA, INC.
By:___________________
Name: Lior Hessel
Title: CEO
CHARLESTON CAPITAL COPRORATION:
By:___________________
Name: Ara Proudian
Title: President
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
By:__________________________________
Name: Douglas H. Leighton
Title: A Managing Member