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
