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AIRBEE WIRELESS, INC.
PLACEMENT AGENT
AGREEMENT
Dated as of:
April 20, 2005
Monitor Capital Inc.
9171 Towne Center Drive – Suite 465
San Diego, CA 92122
Ladies and Gentlemen:
The
undersigned, Airbee Wireless, Inc., a Delaware corporation (the
“ Company ”), hereby agrees with Monitor Capital
Inc. (the “ Placement Agent ”) and Cornell
Capital Partners, LP, 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 Standby
Equity Distribution Agreement dated the date hereof (the “
Standby Equity Distribution 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 Twenty Million Dollars
($20,000,000) of the Company’s common stock (the “
Commitment Amount ”), par value $0.00004 per share
(the “ Common Stock ”), at price per share equal
to the Purchase Price, as that term is defined in the Standby
Equity Distribution Agreement. The Placement Agent services shall
consist of reviewing the terms of the Standby Equity Distribution
Agreement and advising the Company with respect to those terms.
All
capitalized terms used herein and not otherwise defined herein
shall have the same meaning ascribed to them as in the Standby
Equity Distribution Agreement. The Investor will be granted certain
registration rights with respect to the Common Stock as more fully
set forth in the Registration Rights Agreement between the Company
and the Investor dated the date hereof (the “ Registration
Rights Agreement ”). The documents to be executed and
delivered in connection with the Offering, including, but not
limited, to the Company’s latest Form 10-SB, Quarterly Report
on Form 10-QSB as filed with the United States Securities and
Exchange Commission, this Agreement, the Standby Equity
Distribution Agreement, the Registration Rights Agreement, and the
Escrow Agreement dated the date hereof (the “ Escrow
Agreement ”), are referred to sometimes hereinafter
collectively as the “ Offering Materials .” The
Company’s Common Stock purchased by the Investor hereunder or
to be issued in connection with the conversion of any debentures
are sometimes referred to hereinafter as the “
Securities .” The Placement Agent shall not be
obligated to sell any Securities.
2.
Compensation .
A. Upon the execution of this Agreement, the Company shall
issue to the Placement Agent or its designee shares of the
Company’s Common Stock in an amount equal to Ten Thousand
Dollars ($10,000) divided by the volume weighted average price of
the Company’s Common Stock, as quoted by Bloomberg, LP, on
the date hereof (the “ Placement Agent’s Shares
”). The Placement Agent shall be entitled to
“piggy-back” registration rights, which shall be
triggered upon registration of any shares of Common Stock by the
Investor with respect to the Placement Agent’s Shares
pursuant to the Registration Rights Agreement dated the date
hereof.
3.
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 intentionally take any
action that it reasonably believes would cause the Offering to
violate the provisions of the Securities Act of 1933, as amended
(the “ Securities Act ”), the Securities
Exchange Act of 1934 (the “ Exchange Act ”), the
respective rules and regulations promulgated thereunder (the
“ Rules and Regulations ”) or applicable
“Blue Sky” laws of any state or jurisdiction.
(v) The Placement Agent is a member of the National
Association of Securities Dealers, Inc., and is a broker-dealer
registered as such under the Exchange 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 material compliance with the rules and regulations
applicable to the Placement Agent generally and applicable to the
Placement Agent’s participation in the Offering.
4.
Representations and Warranties of the Company .
A. The
Company represents and warrants as follows:
(i) The execution, delivery and performance of each of this
Agreement, the Standby Equity Distribution Agreement, the Escrow
Agreement, and the Registration Rights Agreement has been or will
be duly and validly authorized by the Company and is, or with
respect to this Agreement, the Standby Equity Distribution
Agreement, the Escrow Agreement, and the Registration Rights
Agreement, will 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 Standby
Equity Distribution Agreement have been duly authorized and, when
issued and paid for in accordance with this Agreement, the Standby
Equity Distribution Agreement and the certificates/instruments
representing such Securities, 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 Standby Equity
Distribution 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 Standby Equity Distribution
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.
(iii) The Common Stock to be issued in accordance with this
Agreement and the Standby Equity Distribution Agreement has been
duly authorized and, when issued and paid for in accordance with
this Agreement, the Standby Equity Distribution Agreement and the
Compensation Debenture, 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.
(iv) The Company has good and marketable title to, or valid
and enforceable leasehold estates in, all items of real and
personal property necessary to conduct its business (including,
without limitation, any real or personal property stated in the
Offering Materials to be owned or leased by the Company), free and
clear of all liens, encumbrances, claims, security interests and
defects of any material nature whatsoever, other than those set
forth in the Offering Materials and liens for taxes not yet due and
payable.
(v) There is no litigation or governmental proceeding pending
or, to the best of the Company’s knowledge, threatened
against, or involving the properties or business of the Company,
except as set forth in the Offering Materials.
(vi) The Company has been duly organized and validly exists as
a corporation in good standing under the laws of the State of
Delaware. Except as set forth in the Offering Materials, the
Company does not own or control, directly or indirectly, an
interest in any other corporation, partnership, trust, joint
venture or other business entity. The Company is duly qualified or
licensed and in good standing as a foreign corporation in each
jurisdiction in which the character of its operations requires such
qualification or licensing and where failure to so qualify would
have a material adverse effect on the Company. The Company has all
requisite corporate power and authority, and all material and
necessary authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental regulatory officials and
bodies (domestic and foreign) to conduct its businesses (and
proposed business) as described in the Offering Materials. Any
disclosures in the Offering Materials concerning the effects of
foreign, federal, state and local regulation on the Company’s
businesses as currently conducted and as contemplated are correct
in all material respects and do not omit to state a material fact.
The Company has all corporate power and authority to enter into
this Agreement, the Standby Equity Distribution Agreement, the
Registration Rights Agreement, and the Escrow Agreement, to carry
out the provisions and conditions hereof and thereof, and all
consents, authorizations, approvals and orders required in
connection herewith and therewith have been obtained. No consent,
authorization or order of, and no filing with, any court,
government agency or other body is required by the Company for the
issuance of the Securities or execution and delivery of the
Offering Materials except for applicable federal and state
securities laws. The Company, since its inception, has not incurred
any liability arising under or as a result of the application of
any of the provisions of the Securities Act, the Exchange Act or
the Rules and Regulations.
(vii) There has been no material adverse change in the
condition or prospects of the Company, financial or otherwise, from
the latest dates as of which such condition or prospects,
respectively, are set forth in the Offering Materials, and the
outstanding debt, the property and the business of the Company
conform in all material respects to the descriptions thereof
contained in the Offering Materials.
(viii) Except as set forth in the Offering Materials, the
Company is not in breach of, or in default under, any term or
provision of any material indenture, mortgage, deed of trust,
lease, note, loan or Standby Equity Distribution Agreement or any
other material agreement or instrument evidencing an obligation for
borrowed money, or any other material agreement or instrument to
which it is a party or by which it or any of its properties may be
bound or affected. The Company is not in violation of any provision
of its charter or by-laws or in violation of any franchise,
license, permit, judgment, decree or order, or in violation of any
material statute, rule or regulation. Neither the execution and
delivery of the Offering Materials nor the issuance and sale or
delivery of the Securities, nor the consummation of any of the
transactions contemplated in the Offering Materials nor the
compliance by the Company with the terms and provisions hereof or
thereof, has conflicted with or will conflict with, or has resulted
in or will result in a breach of, any of the terms and provisions
of, or has constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or pursuant to the terms of any indenture, mortgage, deed
of trust, note, loan or any other agreement or instrument
evidencing an obligation for borrowed money, or any other agreement
or instrument to which the Company may be bound or to which any of
the property or assets of the Company is subject except
(a) where such default, lien, charge or encumbrance would not
have a material adverse effect on the Company and (b) as
described in the Offering Materials; nor will such action result in
any violation of the provisions of the charter or the by-laws of
the Company or, assuming the due performance by the Placement Agent
of its obligations hereunder, any material statute or any material
order, rule or regulation applicable to the Company of any court or
of any foreign, federal, state or other regulatory authority or
other government body having jurisdiction over the Company.
(ix) Subsequent to the dates as of which information is given
in the Offering Materials, and except as may otherwise be indicated
or contemplated herein or therein and the securities offered
pursuant to the Securities Purchase Agreement dated the date
hereof, the Company has not (a) issued any securities or
incurred any liability or obligation, direct or contingent, for
borrowed money, or (b) entered into any transaction other than
in the ordinary course of business, or (c) declared or paid
any dividend or made any other distribution on or in respect of its
capital stock. Except as described in the Offering Materials, the
Company has no outstanding obligations to any officer or director
of the Company.
(x) There are no claims for services in the nature of a
finder’s or origination fee with respect to the sale of the
Common Stock or any other arrangements, agreements or
understandings that may affect the Placement Agent’s
compensation, as determined by the National Association of
Securities Dealers, Inc.
(xi) The Company owns or possesses, free and clear of all
liens or encumbrances and rights thereto or therein by third
parties, the requisite licenses or other rights to use all
trademarks, service marks, copyrights, service names, trade names,
patents, patent applications and licenses necessary to conduct its
business (including, without limitation, any such licenses or
rights described in the Offering Materials as being owned or
possessed by the Company) and, except as set forth in the Offering
Materials, there is no claim or action by any person pertaining to,
or proceeding, pending or threatened, which challenges the
exclusive rights of the Company with respect to any trademarks,
service marks, copyrights, service names, trade names, patents,
patent applications and licenses used in the conduct of the
Company’s businesses (including, without limitation, any such
licenses or rights described in the Offering Materials as being
owned or possessed by the Company) except any claim or action that
would not have a material adverse effect on the Company; the
Company’s current products, services or processes do not
infringe or will not infringe on the patents currently held by any
third party.
(xii) Except as described in the Offering Materials, to the
best knowledge of the Company, it is not under any obligation to
pay royalties or fees of any kind whatsoever to any third party
with respect to any trademarks, service marks, copyrights, service
names, trade names, patents, patent applications, licenses or
technology it has developed, uses, employs or intends to use or
employ, other than to their respective licensors.
(xiii) Subject to the performance by the Placement Agent of
its obligations hereunder the offer and sale of the Securities
complies, and will continue to comply, in all material respects
with the requirements of Rule 506 of Regulation D
promulgated by the SEC pursuant to the Securities Act and any other
applicable federal and state laws, rules, regulations and executive
orders. Neither the Offering Materials nor any amendment or
supplement thereto nor any documents prepared by the Company in
connection with the Offering will contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. All statements of material facts in the Offering
Materials are true and correct as of the date of the Offering
Materials.
(xiv) All material taxes which are due and payable from the
Company have been paid in full or adequate provision has been made
for such taxes on the books of the Company, except for those taxes
disputed in good faith by the Company
(xv) None of the Company nor any of its officers, directors,
employees or agents, nor any other person acting on behalf of the
Company, has, directly or indirectly, given or agreed to give any
money, gift or similar benefit (other than legal price concessions
to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, or official
or employee of any governmental agency or instrumentality of any
government (domestic or foreign) or any political party or
candidate for office (domestic or foreign) or other person who is
or may be in a position to help or hinder the business of the
Company (or assist it in connection with any actual or proposed
transaction) which (A) might subject the Company to any damage
or penalty in any civil, criminal or governmental litigation or
proceeding, or (B) if not given in the past, might have had a
materially adverse effect on the assets, business or operations of
the Company as reflected in any of the financial statements
contained in the Offering Materials, or (C) if not continued
in the future, might adversely affect the assets, business,
operations or prospects of the Company in the future.
5.
Representations, Warranties and Covenants of the Investor
.
A. The
Investor represents, warrants
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