Exhibit 1.1
MARINER INVESTMENT GROUP
14811 St. Mary's Lane, Suite 130
Houston, Texas 77079
August 30, 2002
Capitol Group Holding Corp.
2887 Green Valley, Suite 320
Henderson, Nevada 89014
Re: Placement Agreement
Gentlemen:
Mariner Investment Group ("Mariner") hereby agrees to act as the
placement agent in an attempt to raise proceeds through the sale to investors
(the "Subscribers") of certain equity securities as more particularly described
herein (any such proceeds, the "Capital"). Upon your acceptance hereof, as
indicated below, Capitol Group Holding Corp.. ("Capitol Group Holding Corp.")
agrees that it shall be bound by this Placement Agreement. Mariner's efforts to
raise the Capital are based upon the following terms and conditions:
1. Engagement. For a period of 180 days from the effective date of the
Prospectus (as defined below), Mariner is hereby granted a non-exclusive right,
as placement agent, to raise the Capital in the manner to be described in the
Prospectus. Notwithstanding anything contained herein to the contrary, Mariner
shall be entitled to select and employ other broker-dealers to sell all or any
portion of the offered shares of the Common Stock of Capitol Group Holding
Corp., as defined below. Further, Mariner shall be entitled to reallow a portion
of its commission to any such participating broker-dealer which raises a portion
of the Capital.
For purposes of this Placement Agreement, the term "Prospectus" shall
mean the prospectus included within the Form SB-2 Registration Statement
("Registration Statement") to be filed with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the offering of shares of the common stock, par
value $0.001 per share (the "Common Stock") of Capitol Group Holding Corp. , a
Nevada corporation. As used in this Placement Agreement, the term "Capitol Group
Holding Corp." shall mean the Nevada corporation named Capitol Group Holding
Corp. , as of the date of this Placement Agreement and/or the Nevada corporation
to have such name following the merger described in the foregoing sentence, as
applicable.
2. The Offering. The Capital shall be raised by Mariner pursuant to an
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offering (the "Offering") involving the public sale of the Common Stock
pursuant to the Prospectus. The Offering shall be conducted in conformity
with the Securities Act and the terms and conditions of the Prospectus.
3. Best Efforts. Mariner will conduct the Offering on a "best efforts"
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basis. Therefore, Mariner does not guarantee that any or all of the Capital
will be raised.
4. Representations and Warranties of Capitol Group Holding Corp..
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4.1 At the time the Registration Statement is declared effective by the SEC (the
"Effective Date"), the Registration Statement and the Prospectus and any
supplemental sales material will contain all statements which are required to be
stated therein in accordance with the Securities Act, all Rules and Regulations
of the SEC (the "Regulations") and all state securities laws, will comply with
the provisions of the Securities Act and the Regulations and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Every contract or other document required by the Securities Act or
the Regulations to be filed as an exhibit to the Registration Statement has been
so filed.
4.2 There is not pending, threatened, or to Capitol Group Holding Corp.'s
knowledge, contemplated, any action, suit or proceeding before or by an court or
any Federal, state or local governmental authority or agent to which the Company
is or may be a party, or to which its properties or assets is or may be subject,
or which is not described in the Prospectus, and which might result in any
material adverse change in the condition (financial or otherwise), business or
prospects of Capitol Group Holding Corp. or might materially and adversely
affect any of its properties or assets.
4.3 The financial statements of Capitol Group Holding Corp. filed as part of the
Registration Statement and included in the Prospectus fairly present the
financial picture of Capitol Group Holding Corp. at the date indicated. Such
financial statements comply as to form in all material respects with the
requirements of the Securities Act and the Regulations and has been prepared in
conformity with generally accepted accounting principles. The accountants who
expressed an opinion on the financial statements filed as part of the
Registration Statement with the SEC are, with respect to Capitol Group Holding
Corp., independent public accountants as required by the Securities Act and the
Regulations.
4.4 Neither Capitol Group Holding Corp., any affiliate of Capitol Group Holding
Corp., or any officer, director, or beneficial owner of 10% or more of any class
of equity securities of Capitol Group Holding Corp.:
4.4.1 has filed a registration statement which is the subject of a currently
effective registration stop order entered pursuant to any state's securities
laws within five (5) years prior to the date of this Placement Agreement;
4.4.2 has been convicted within five (5) years prior to the date of this
Placement Agreement of any felony or misdemeanor in connection with the offer,
purchase or sale of any security, or any felony involving fraud or deceit,
including, but not limited to, forgery, embezzlement, obtaining money under
false pretenses, larceny, or conspiracy to defraud;
4.4.3 is currently subject to any self-regulatory, federal or state
administrative enforcement complaint, investigation, preliminary or permanent
restraining order or judgment entered by an self regulatory, federal or state
securities administrator within five (5) years prior to the date of this
Placement Agreement, or is subject to any self-regulatory, federal, or state's
administrative enforcement complaint, investigation, preliminary or permanent
restraining order or judgment entered within five (5) years prior to the date of
this Placement Agreement in which fraud or deceit, including, but not limited
to, making untrue statements of material facts and/or omitting to state material
facts, was found;
4.4.4 is subject to any state's administrative enforcement order of judgment
which revokes, denies or prohibits utilization by Capitol Group Holding Corp. of
any exemption from registration in connection with the offer, purchase or sale
of securities; or
4.4.5 is currently subject to any order, judgment or decree of any court of
competent jurisdiction temporarily or preliminarily restraining or enjoining, or
is subject to any order, judgment or decree of any court of competent
jurisdiction permanently restraining or enjoining, such party from engaging in
or continuing any conduct or practice in connection with the purchase or sale of
any security or involving the making of any false filing with any jurisdiction,
entered within five (5) years prior to the date of this Placement Agreement; and
4.4.6 There is not nor has there ever been any litigation or governmental
proceeding against Capitol Group Holding Corp. involving a charge of fraud or
deceit, violation of state or federal securities laws, or any similar charge.
Further, Capitol Group Holding Corp. has not filed any form of bankruptcy
proceedings, nor does Capitol Group Holding Corp. contemplate filing any form of
bankruptcy proceeding or have any knowledge with respect to any contemplated or
threatened filing of an involuntary bankruptcy proceeding.
4.4.7 The net proceeds derived from the sale contemplated herein will be used in
the manner described in the Prospectus subject to the qualifications set forth
therein.
4.4.8 Except as described in the Prospectus and excluding payments of salaries
to employees in the ordinary course of business, no current or former
shareholder, director, officer or key employee of Capitol Group Holding Corp. or
any "Associate" (as defined in Rule 405 promulgated under the Securities Act) of
any such person, is presently, directly or indirectly through his affiliation
with any other person or entity, a party to any material transaction with
Capitol Group Holding Corp. providing for the furnishing of services by or to,
or rental of real or personal property from or to, or otherwise requiring cash
payments to or by any such person. In addition, except as described in the
Prospectus, there are no outstanding loans or advances, other than ordinary
travel and expense advances, or guarantees of indebtedness by Capitol Group
Holding Corp. to or for the benefit of any officer, director, shareholder or
affiliate (as defined in Rule 405) of Capitol Group Holding Corp., or any member
of the families of such, and there are not material transactions between or
among Capitol Group Holding Corp., or any of its officers, directors,
shareholders or affiliates of a type or character required to be described in
Item 404 of Regulation S-K promulgated under the Securities Act which are not
described in the Prospectus.
4.5 Capitol Group Holding Corp. is not an investment company as that term is
defined in the Investment Company Act of 1940, as amended.
5. Blue Sky Qualification. Capitol Group Holding Corp. will use its best efforts
to qualify the shares of Common Stock offered pursuant to the Prospectus and the
Registration Statement, or to establish an exemption for these shares of Common
Stock from qualification, at or prior to the time the Registration Statement
becomes effective or as soon thereafter as possible, for offering and sale under
the "blue sky" or securities laws of each state in which Capitol Group Holding
Corp. shall determine the Offering shall take place and will thereafter maintain
such qualification in effect until the Termination Date. Capitol Group Holding
Corp. will cause a "blue sky" survey advising Mariner as to the jurisdictions in
which the Common Stock has been qualified for offering and sale to be prepared
and delivered to Mariner on or before the Effective Date and an amendment to be
prepared and delivered on each date that (i) the Common Stock is qualified in
any additional jurisdiction or (ii) the status of the qualification of the
Common Stock in any jurisdiction is altered in any respect. In each jurisdiction
where such qualification shall be effected, Capitol Group Holding Corp. shall
file and make such statements or reports at such time as may be required by the
laws of such jurisdiction. Capitol Group Holding Corp. will immediately notify
Mariner, and confirm such advice in writing, of the issuance by the authorities
in any such jurisdiction of any stop order or of the initiation or the
threatening of any proceeding for that purpose. If any such authority shall
enter a stop order at any time, Capitol Group Holding Corp. will make every
reasonable effort to obtain the lifting of such order at the earliest possible
moment.
6. Delivery of Registration Statement, Prospectus and Amendments thereto.
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Capitol Group Holding Corp. will deliver to Mariner, without expense to
Mariners, at such locations that Mariner requests, (i) as soon as practicable,
three signed copies of the Registration Statement and all amendments thereto,
including exhibits and (ii) as soon as any Prospectus is filed with the SEC or
is transmitted to the SEC for filing or any supplement to the Prospectus is
filed with the SEC or is transmitted for filing, such number of copies of the
Prospectus and supplements and amendments thereto as Mariner may reasonably
request.
7. Sales Material. Capitol Group Holding Corp. shall deliver to Mariner
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in such reasonable quantities as Mariner requests, all supplemental sales
material, designated for broker-dealer use in connection with the offering of
the Common Stock prior to the use or delivery to third parties of such material.
Prior to the use of delivery to third parties of any supplemental sales
material, Capitol Group Holding Corp., at its expense, will file such materials
(i) in any jurisdiction where so required by law in which an application for
qualification is pending and (ii) with the NASD.
8. Termination.
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(a) Notwithstanding anything contained herein to the contrary, in the event that
a party hereto (i) violates the terms of this Placement Agreement, including,
but not limited to, the representations and warranties contained herein, or the
securities laws of the United States or any state wherein the Common Stock is to
be offered, or (ii) a party furnishes the other party hereto information which
is untrue or misleading or fails to state the facts which make any such
information misleading, the other party may terminate this Placement Agreement.
(b) In addition, Mariner or Capitol Group Holding Corp. may terminate this
Placement Agreement at any time.
(c) Furthermore, Mariner or Capitol Group Holding Corp. may terminate the
Offering in the event that, among other things, (i) certain specified actions,
usually associated with extremely adverse economic and market conditions, have
been taken by the principal national securities exchanges or by governmental
authorities, or (ii) other events have occurred or are pending or threatened
which, in the judgment of Mariner or Capitol Group Holding Corp., materially
impair the investment quality of an investment in Capitol Group Holding Corp..
Any such termination of the Offering by Mariner or Capitol Group Holding Corp.
shall also terminate this Placement Agreement.
In the event of any termination as described in this Paragraph 4,
neither party shall have any further liability to the other hereunder, except
that Mariner shall be entitled to any unpaid compensation which is then due
hereunder, or there is any right to indemnification as provided hereinafter.
9. Escrow Account. The parties shall, and by their respective execution
of this Placement Agreement hereby agree to establish an escrow account (the
"Escrow Account") which shall be entitled "Capitol Group Holding Corp. , Escrow
Account" for the benefit of the Subscribers to the Offering or such other name
or title as the parties shall mutually agree. Each person desiring to purchase
shares of the Common Stock shall be required to provide a Subscription Agreement
and make payment for the Common Stock as described in the Prospectus. Capitol
Group Holding Corp., upon receipt of a copy of the Subscription Agreement and
such other documents as it may deem necessary or desirable, shall inform such
person within 10 days whether it wishes to accept the proposed purchaser, it
being understood that Capitol Group Holding Corp. reserves the right to reject
any proposed purchaser.
10. Deposits into the Escrow Account. All collected funds of the
Subscribers received by Mariner shall be deposited directly into the Escrow
Account. Mariner shall advise Capitol Group Holding Corp. in writing at the time
of each deposit into the Escrow Account of the name and address of each
Subscriber along with the number of shares of the Common Stock subscribed for by
each Subscriber, and the cash amount tendered by each Subscriber. All amounts
deposited into the Escrow Account shall be held in the Escrow Account pursuant
to the terms of the Escrow Agreement filed as an exhibit to the Registration
Statement and shall be in compliance with Rule 15c2-4 of the Securities Exchange
Act of 1934, as amended.
11. Tax Matters. Mariner shall provide to Capitol Group
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Holding Corp. with respect to each Subscriber a taxpayer identification
number documented by an appropriate Form W-8 or Form W-9 or certificate of
foreign taxpayer exemption prior to any deposit for such Subscriber into the
Escrow Account.
12 Disbursement from the Escrow Account. During the term of the
Offering and until its termination as herein provided, at the expiration of five
days after the sale of shares of the Common Stock for a sum totaling $25,000 by
Mariner and the deposit of the proceeds from the sale thereof into the Escrow
Account, together with information as to the names and addresses of the
Subscribers and the amount subscribed for by each such Subscriber, Mariner shall
disburse the proceeds of such sales and any interest earned to Capitol Group
Holding Corp., less the amount of any Sales Commission, as defined below, with
respect to proceeds being disbursed. Upon the happening of (a) the complete
disbursement from the Escrow Account by Mariner to Capitol Group Holding Corp.
of the proceeds from the Offering in accordance with the distribution terms
hereinabove set forth, or (b) the Offering is terminated, and the repayment to
the Subscribers of their subscriptions, Mariner shall be relieved of all
liabilities in connection with the Escrow Account and this Placement Agreement
shall terminate.
13 Investment of the Escrow Account. Mariner may invest the funds in
the money market savings account maintained by the bank where the Escrow Account
is located. The interest rate is subject to change without notice. Deposits into
the Escrow Account will begin earning interest after the Subscriber's check has
cleared in accordance with Mariner's standard policy.
14. Compensation. As compensation for its services provided under this
Placement Agreement, Mariner is entitled to receive a sales commission equal to
(blank %) of the Capital raised by Mariner and all other broker-dealers selected
by Mariner pursuant to the terms of this Placement Agreement, if any (the "Sales
Commission").
15. Indemnification. Each of the parties hereto shall indemnify and
hold the other party harmless against any losses, claims, damages or liability
to which the party requesting indemnification (each an "Indemnified Party") may
become subject under the Securities Act or otherwise (including, without
limitation, any and all expenses whatsoever reasonably incurred in
investigating, preparing, or defending against the same) (all such losses,
claims, damages, expenses and other liability are collectively referred to
herein as the "Damages") by reason of (a) the breach of any representation,
warranty or covenant contained herein by the party from whom indemnification is
requested (each an "Indemnifying Party"), or (b) the making of any untrue
statement of a material fact (or omission thereof) in the Prospectus resulting
from information furnished by the Indemnifying Party. Provided, however, the
Indemnified Party shall not be entitled to indemnification for Damages resulting
from an untrue statement of a material fact (or omission thereof) in the
Prospectus if (y) the Indemnifying Party furnished the Indemnified Party with
additional information or an amendment or supplement to the Prospectus which
corrected such untrue statement or omission prior to the occurrence of the
alleged Damages, and (z) the Indemnified Party failed to send or provide such
information or a copy of such corrective amendment or supplement, as applicable,
to the person asserting such Damages within the appropriate timeframe required
by the Securities Act or any other applicable law.
(a) Capitol Group Holding Corp. shall indemnify and hold Mariner and each
person, if any, who controls Mariner within the meaning of the Securities Act,
together with all its officers, directors, employees, or agents harmless from
and against any and all Damages which arise out of, or are based upon: (i)
Capitol Group Holding Corp.'s inclusion of any untrue statement or alleged
untrue statement of a material fact in the Prospectus, including any amendments
or supplements thereto, or any application or other document filed in any state
or other jurisdiction in order to qualify the Offering under the Blue Sky or
securities laws of such state or jurisdiction or to secure an exemption
therefrom (all such actions, a "Blue Sky Application"), (ii) Capitol Group
Holding Corp.'s omission or alleged omission of a material fact (A) required to
be included in any such document described in clause (i) or (B) necessary to
prevent the statements contained in any such document from being misleading in
light of the circumstances under which such statements were made; (iii) the
taking of any actions, direct or indirect, in connection with the offering and
sale of the Common Stock by Capitol Group Holding Corp. or any of its officers
or directors (excluding Mariner and its employees and affiliates) in violation
of the Securities Act or any other applicable federal or state securities laws
or regulations; or (iv) the breach of any representation, warranty or covenant
contained in the Placement Agreement.
(b) Mariner shall indemnify and hold harmless Capitol Group Holding Corp. and
each of its affiliates against any Damages which arise out of, or are based
upon: (i) the inclusion of any untrue statement or alleged untrue statement of a
material fact in the Prospectus, a Blue Sky Application or any other document
referred to in clause (i) of Paragraph 15(a) which is made by, or resulted from
information provided by, Mariner; (ii) Mariner's misuse or unauthorized use in
any jurisdiction of any supplemental sales literature (whether designed solely
for broker-dealer use or otherwise); or (iii) Mariner's delivery, distribution
or furnishing, either orally or in writing, of any information related to
Capitol Group Holding Corp. or the Offering which is not contained in, or is
materially inconsistent with, the information contained in the Prospectus or any
supplemental sales literature.
(c) Upon receipt of notice of the commencement of any action for which
indemnification may be sought under this Paragraph 15, the Indemnified Party
shall promptly notify the Indemnifying Party of the commencement of such action
and the Indemnified Party's desire to seek indemnification hereunder; provided,
however, failure to so notify the Indemnifying Party shall not relieve it from
any liability which it may have to the Indemnified Party otherwise than under
this Placement Agreement. The Indemnifying Party shall be entitled to
participate in, and to the extent desired, to jointly participate with any other
Indemnifying Party, in the defense of such action with the Indemnified Party.
The Indemnifying Party shall pay all legal fees and expenses of the Indemnified
Party in the defense of such claims and actions. Notwithstanding anything
contained herein to the contrary, an Indemnified Party may, without the prior
consent of the Indemnifying Party, fully settle or compromise any action brought
against an Indemnified Party which is covered by this Paragraph 15.
(d) The provisions of this Paragraph 15 shall remain in full force and effect
after the termination of this Placement Agreement.
16. Effective Date. This Placement Agreement shall become
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effective on the date it is executed by a duly authorized representative of
Capitol Group Holding Corp..
17. Further Acts. The parties understand that this Placement Agreement
is not complete in every detail with respect to the Offering, and that it may
become necessary to amend this Placement Agreement from time to time in order to
carry out the intent hereof. However, each party will proceed in good faith to
carry out the intent and terms of this Placement Agreement. Further, in a timely
and complete manner, the parties shall provide each other with all information
needed to complete the preparation of the Prospectus and all other documents
related thereto, and to supplement such information during the course of the
Offering or thereafter as required by applicable law. In that regard, Capitol
Group Holding Corp. undertakes and agrees to provide Mariner with such
information and data as may be reasonably required for Mariner to comply with
its statutory and regulatory obligations in connection with the Offering, the
application of proceeds and the operations of Capitol Group Holding Corp..
18. Assignment. Except for Mariner's right to select and employ
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additional broker-dealers to sell all or any portion of the Common Stock to be
sold in the Offering, this Placement Agreement and the rights and
obligations of the parties hereunder may not be assigned.
19. Mediation and Arbitration. All disputes arising or related to this
Placement Agreement must exclusively be resolved first by mediation with a
mediator selected by the parties, with such mediation to be held in Houston,
Texas. If such mediation fails, then any such dispute shall be resolved by
binding arbitration under the Commercial Arbitration Rules of the American
Arbitration Association in effect at the time the arbitration proceeding
commences, except that (a) Texas law and the Federal Arbitration Act must govern
construction and effect, (b) the locale of any arbitration must be in Houston,
Texas, and (c) with the award, the arbitrator must provide written findings of
fact and conclusions of law. Either party to this Placement Agreement may seek
from a court of competent jurisdiction any provisional remedy that may be
necessary to protect its rights or assets pending the selection of the
arbitrator or the arbitrator's determination of the merits of the controversy.
The exercise of such arbitration rights by a party will not preclude the
exercise of any self-help remedies (including without limitation, setoff rights)
or the exercise of any non-judicial foreclosure rights. An arbitration award may
be entered in any court having jurisdiction.
20. Attorneys' fees. In the event that it should become necessary for
any party entitled hereunder to bring suit against the other party to the
Placement Agreement for enforcement of the covenants contained herein, the
parties hereby covenant and agree that the party who is found to be in violation
of this Placement Agreement shall also be liable to the other party for all
reasonable attorneys' fees and costs of court incurred by such other party.
21. Benefit. The terms and provisions of this Placement Agreement
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shall be binding upon, inure to the benefit of and be enforceable by, the
parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns.
22. Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and delivered personally or sent by
registered or certified United States mail, return receipt requested with
postage prepaid, or by telecopy or electronic mail (e-mail), if to Mariner,
addressed to Mr. Joe F. Moore, Jr., at 14811 St. Mary's Lane, Suite 130,
Houston, Texas 77079, telecopier (281) 596-9444, and e-mail
joemoore@marinerinvestment.net; and if to Capitol Group Holding Corp., addressed
to Capitol Group Holding Corp. Mr. Frank Dobrucki at 2887 Green Valley, Suite
320, Henderson, Nevada 89014, telecopier (702) _________, and e-mail Capitol
Group Holding Corp._____________________. Either party may change its address
for purposes of receiving notices pursuant to this Placement Agreement upon 10
days written notice.
23. Construction. Words of any gender used in this Placement Agreement
shall be held and construed to include any other gender, and words in the
singular number shall be held to include the plural, and vice versa, unless the
context requires otherwise. In addition, the pronouns used in this Placement
Agreement shall be understood and construed to apply whether the party referred
to is an individual, partnership, joint venture, corporation or an individual or
individuals doing business under a firm or trade name, and the masculine,
feminine and neuter pronouns shall each include the other and may be used
interchangeably with the same meaning.
24. Waiver. No course of dealing on the part of any party hereto or its
agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Placement Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
25. Cumulative Rights. The rights and remedies contained in
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this Placement Agreement shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of
any other right or remedy.
26. Invalidity. In the event any one or more of the provisions
contained in this Placement Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Placement
Agreement or any such other instrument.
27. Headings. The headings used in this Placement Agreement are
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for convenience and reference only and in no way define, limit, amplify or
describe the scope or intent of this Placement Agreement, and do not
effect or constitute a part of this Placement Agreement.
28. Excusable Delay. The parties shall not be obligated to perform and shall not
be deemed to be in default hereunder, if the performance of a non-monetary
obligation required hereunder is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual,
impending or expected and whether de jure or de facto), acts of terrorists,
arrest or other restraint of governmental (civil or military), blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein enumerated
or otherwise, that are not reasonably within the control of the party claiming
the right to delay performance on account of such occurrence.
29. No Third-Party Beneficiary. Any agreement to pay an amount and any
assumption of liability contained in this Placement Agreement, express or
implied, shall be only for the benefit of the undersigned parties and their
respective successors and assigns (as herein expressly permitted), and such
agreements and assumptions shall not inure to the benefit of the obligees or any
other party, whomsoever, it being the intention of the parties hereto that no
one shall be or be deemed to be a third-party beneficiary of this Placement
Agreement.
30. Multiple counterparts. This Placement Agreement may be executed in
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one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
31. Governing law; Jurisdiction. This Placement Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court for
Harris County, Texas, as well as of the District Courts of the State of Texas in
Harris County, Texas over any suit, action or proceeding arising out of or
relating to this Placement Agreement. Each party hereby irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such mediation, arbitration, suit, action
or proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
32. Entire Agreement. This instrument contains the entire understanding
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of the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by each of the parties
hereto.
33. Representations, Warranties and Agreements to Survive. All indemnity
agreements set forth in this Placement Agreement, as well as all
representations, warranties, covenants and other agreements set forth in this
Placement Agreement shall remain operative and in full force and effect at the
termination of this Placement Agreement, and any successor of the parties shall
be entitled to the benefit of the respective representations, warranties and
agreements made herein.
34. Expenses of the Offering and Placement. Capitol Group Holding Corp. will pay
all costs and expenses incident to the performance of its obligations under this
Placement Agreement, including all costs and expenses incident to (i) the
preparation, printing, filing and delivery of the Registration Statement and the
Prospectus, including the cost of all copies thereof and of any preliminary
prospectus and of the Prospectus and any amendment thereof or supplement
thereto, including such quantities of each such document as Mariner reasonably
requests, (ii) the Escrow Agreement and all amendments thereto, other
solicitation material and related documents and the filing or recording of such
documents necessary to comply with the laws of the jurisdictions in which
Capitol Group Holding Corp. and Mariner determine to effect the placement of the
Common Stock, as well as any federal, NASD or exchange filings; (iii) the
delivery of the shares representing the Common Stock, including payment of any
applicable transfer tax; (iv) any escrow arrangement in connection with the
Offering and sale of the Common Stock, including any compensation and
reimbursement to the Escrow Agent; (v) the qualification of the Common Stock to
be offered under, and continued compliance with "blue sky" or securities laws of
the jurisdictions contemplated by Capitol Group Holding Corp. and Mariner herein
to effect the sale of the Common Stock including filing fees and the fees and
disbursements of counsel incurred in connection therewith and the cost of
printing of the "blue sky" survey and supplements thereto; (vi) the filing fees
payable to the SEC and to the NASD; (vii) printing and distribution expenses;
and (viii) the fees of counsel and accountants for Capitol Group Holding Corp.:
(ix) fees and travel incident to the due diligence on the Company and it's
control persons .
If the foregoing meets your approval and you agree to such terms and
conditions, please sign and date this letter in the space provided below. Please
return the originally executed letter to me as soon as possible and retain a
copy thereof for your files.
Very truly yours,
MARINER INVESTMENT GROUP
By /s/ Joe F. Moore, Jr.
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Joe F. Moore, Jr., President
This Placement Agreement is accepted and
Agreed to this 30th day of August, 2002
Capitol Group Holding Corp. ,.
By /s/Frank Dobrucki
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Frank Dobrucki