EXHIBIT 10.32
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SPEECHSWITCH, INC.
AMENDED AND RESTATED PLACEMENT AGENT AGREEMENT
Dated as of: December 12, 2005
Monitor Capital Inc.
9171 Towne Centre Drive, Suite 465
San Diego, CA 92122
Ladies and Gentlemen:
The undersigned, SpeechSwitch, Inc., a New Jersey 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. This Agreement shall amend and restate the Placement
Agent
Agreement dated August 31, 2005 (the "Original Agreement") by and
among the
parties hereto. Effective as of August 31, 2005, the Company
engaged the
Placement Agent to act as its exclusive placement agent in
connection with the
Standby Equity Distribution Agreement August 31, 2005 (as amended,
amended and
restated or otherwise modified in writing, 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 Ten Million Dollars ($10,000,000) of the
Company's Class A
common stock (the "Commitment Amount"), no par value 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 Quarterly Report on Form 10-QSB as filed with the United
States
Securities and Exchange Commission, this Agreement, the Standby
Equity
Distribution Agreement and the Registration Rights Agreement are
referred to
sometimes hereinafter collectively as the "Offering Materials." The
Company's
Common Stock purchased by the Investor hereunder is sometimes
referred to
hereinafter as the "Securities." The Placement Agent shall not be
obligated to
sell any Securities.
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2. Compensation. On the date hereof, 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
lowest closing bid
price of the Company's Common Stock, as quoted by Bloomberg, LP, on
the fifth
(5th) Trading Day of the Company's Common Stock once it is listed
on a Principal
Market, as such term is defined in the Standby Equity Distribution
Agreement of
even date hereof (the "Placement Agent's Shares"). The Placement
Agent shall be
entitled to "piggy-back" registration rights with respect to the
Placement
Agent's Shares, which shall be triggered upon registration of any
shares of
Common Stock by the Company 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
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applicable to the Placement Agent generally and applicable to the
Placement
Agent's participation in the Offering.
4.
Representations, Warranties and Covenants of the Company.
A. The Company represents, warrants and covenants as follows:
(i) The execution, delivery and performance of each
of this Agreement, the Standby Equity Distribution Agreement and
the
Registration Rights Agreement have been or will be duly and validly
authorized
by the Company and is, or with respect to this Agreement, the
Standby Equity
Distribution 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 and
the Standby Equity Distribution Agreement, 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.
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(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 New
Jersey. 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 and the
Registration
Rights 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
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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, 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,
the Company is not under any obligation to pay royalties or fees of
any kind
whatsoever to any third party with
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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
