Exhibit 4.5
KNOBIAS HOLDINGS,
INC.
PLACEMENT AGENT
AGREEMENT
Dated as of: November 15, 2004
Newbridge Securities Corporation
1451 Cypress Creek Road, Suite 204
Fort Lauderdale, Florida 33309
Ladies and Gentlemen:
The undersigned, Knobias, Inc., a
Delaware corporation (the “ Company ”), hereby
agrees with Newbridge Securities Corporation (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 Ten Million U.S. Dollars
($10,000,000) of the Company’s common stock (the “
Commitment Amount ”), par value US$0.01 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, 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.
Page 153 of 347
2. Compensation .
A. Upon the execution of this
Agreement, the Company shall either (a) pay the Placement Agent Ten
Thousand U.S. Dollars (US$10,000) in cash, or (b) issue to the
Placement Agent or its designee shares of the Company’s
Common Stock in an amount equal to Ten Thousand U.S. Dollars
(US$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. The Placement Agent is not an affiliate of Cornell
Capital Partners, LP.
Page 154 of 347
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.
Page 155 of 347
(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 is validly existing 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.
Page 156 of 347
(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.
Page 157 of 347
(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
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 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
Page 158 of 347
(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
Com
