2
EXHIBIT 10.17
FTS APPAREL INC.
PLACEMENT AGENT AGREEMENT
Dated as of: 9 January 2004.
The undersigned, FTS Apparel Inc., a Colorado corporation (the "COMPANY"),
hereby agrees with Charleston Capital Corporation (the "PLACEMENT AGENT") 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 9
January, 2004 (the "INVESTMENT AGREEMENT") pursuant to which the Company shall
issue and sell to the Investor, from time to time, and the Investor shall
purchase from the Company (the "OFFERING") up to Six Million Dollars
($6,000,000) 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 9 January 2004 (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
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
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)
25,000,000 shares of Common Stock, .001 par value per share, of which as of the
date hereof, 17,770,000 shares are issued and outstanding; 150,000 shares of
Preferred Stock, .01 par value per share outstanding; (as of September 30, 2003)
[_____] of reserved for issuance pursuant to options, warrants and other
convertible securities. The Company filed a preliminary proxy on December 24,
2003 to increase its authorized common shares from 25,000,000 to 150,000,000.
The Company anticipates that the increase will be approved by shareholders at
its annual meeting.
(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
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 deliver, 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;
(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
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
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
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)
upon the execution of this Agreement.
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.
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 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 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
Attention: Ara Proudian, President
216 East 45th Street, Suite 903
New York, NY 10017
(212) 244-1555
(212) 244-6955, fax
If to the Company, to:
FTS Apparel Inc.
Attention: Scott Gallagher, CEO
1049 C Oxford Valley Road
Levittown, PA 19057
(215) 943-9979
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.
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
COMPANY:
By: /s/ Scott Gallagher
Name: Scott Gallagher
Title: President and CEO
PLACEMENT AGENT:
By: /s/ Ara Proudian
Name: Ara Proudian
Title: President
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
By:_/s/ Douglas H. Leighton
Name: Douglas H. Leighton
Title: A Managing Member