PLACEMENT AGENCY AGREEMENT
October 2, 2009
Roth Capital Partners, LLC
China Ritar Power Corp., a Nevada
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell up to
2,150,000 shares (the “ Shares ”) of the
Company’s common stock, par value $0.001 per share (the
“ Common Stock ”) directly to various investors
(the “ Investors ”) in a transaction in which
Roth Capital Partners, LLC (“ Roth ”) will act
as placement agent.
The Company and Roth hereby
confirm their agreement as follows:
1.
Agreement to Act as Placement Agent
. On the basis of the representations,
warranties and agreements of the Company herein contained, and
subject to all the terms and conditions of this Agreement, Roth
shall serve as the exclusive placement agent in connection with the
issuance and sale by the Company of the Shares from the
Registration Statement (as defined in Section 2 below), with the
terms of such offering (the “ Offering ”) to be
subject to market conditions and negotiations between the Company,
Roth and the Investors. Roth shall act on a best efforts
basis and does not guarantee that it will be able to sell the
Shares in the prospective Offering. As compensation for
services rendered, on the Closing Date (as defined below), the
Company shall pay to Roth a cash fee in an amount equal to 6% of
the gross proceeds received by the Company from the sale of such
Shares. The purchase price to the Investors for each
Share is US$6.00 (the “ Offering Price
”). The term of Roth’s exclusive engagement
will be five (5) days from the date hereof (the “
Exclusive Term ”). Roth will be entitled to
collect all fees earned through termination.
2.
Registration Statement and Final Prospectus
. The Company has prepared and filed with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement on Form S-3 (File No. 333-161281) under the
Securities Act of 1933, as amended (the “ Securities
Act ”), and the rules and regulations (the “
Rules and Regulations ”) of the Commission thereunder,
and such amendments to such registration statement (including any
post-effective amendments) as may have been required to the date of
this Agreement. Such registration statement, as amended
(including any post-effective amendments), has been declared
effective by the Commission. Such registration
statement, as amended (including any post-effective amendments),
the exhibits and any schedules thereto and the documents and
information otherwise deemed to be a part thereof or included
therein by the Securities Act or otherwise pursuant to the Rules
and Regulations, is herein called the “ Registration
Statement .” If the Company has filed or files
an abbreviated registration statement pursuant to Rule 462(b) under
the Securities Act (the “ Rule 462 Registration
Statement ”), then any reference herein to the term
Registration Statement shall include such Rule 462 Registration
Statement. The Company will file with the Commission
pursuant to Rule 424 under the Securities Act a prospectus
supplement relating to the Shares to the form of prospectus
included in the Registration Statement. Such prospectus
in the form in which it appears in the Registration Statement is
hereinafter called the “ Base Prospectus ,” and
the final prospectus supplement as filed, along with the Base
Prospectus, is hereinafter called the “ Final
Prospectus .”
For purposes of this Agreement, all
references to the Registration Statement, the Rule 462 Registration
Statement, the Base Prospectus, the Final Prospectus, or any
amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its
Interactive Data Electronic Applications system. All
references in this Agreement to amendments or supplements to the
Registration Statement, the Rule 462 Registration Statement, the
Base Prospectus, or the Final Prospectus shall be deemed to mean
and include the subsequent filing of any document under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), that is deemed to be incorporated
therein by reference or otherwise deemed by the Rules and
Regulations to be a part thereof.
3. Representations
and Warranties Regarding the Offering.
(a) The
Company represents and warrants to, and agrees with, Roth, as of
the date hereof and as of the Closing Date, except as otherwise
indicated, as follows:
(i) At
the time of effectiveness, at the date hereof and at the Closing
Date, the Registration Statement complied or will comply in all
material respects with the requirements of the Securities Act and
the Rules and Regulations and did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Time of Sale
Disclosure Package (as defined below) as of the date hereof and at
the Closing Date, and the Final Prospectus, as amended or
supplemented, at the time of filing pursuant to Rule 424(b) under
the Securities Act and at the Closing Date, did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The
representations and warranties set forth in the two immediately
preceding sentences shall not apply to statements in or omissions
from the Registration Statement or any post-effective amendment
thereto or the Final Prospectus in reliance upon, and in conformity
with, written information furnished to the Company by Roth
specifically for use in the preparation thereof. The
Registration Statement contains all exhibits and schedules required
to be filed by the Securities Act or the Rules and
Regulations. No order preventing or suspending the
effectiveness or use of the Registration Statement or the Final
Prospectus is in effect and no proceedings for such purpose have
been instituted or are pending, or, to the knowledge of the
Company, are threatened in writing by the Commission.
(ii) The
documents incorporated by reference in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Securities Act or the Exchange Act, as applicable, were
filed on a timely basis with the Commission and none of such
documents, when they were filed (or, if amendments to such
documents were filed, when such amendments were filed), contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Any further documents so filed and
incorporated by reference in the Registration Statement, the Time
of Sale Disclosure Package or the Final Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act, and will
not contain an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. As used in this paragraph and elsewhere in
this Agreement, “ Time of Sale Disclosure Package
” means the Final Prospectus, any subscription agreement
between the Company and the Investors, and any issuer free writing
prospectus as defined in Rule 433 of the Act (each, an “
Issuer Free Writing Prospectus ”), if any, identified
in Schedule I hereto, that the parties hereto shall
hereafter expressly agree in writing to treat as part of the
Disclosure Package.
(iii) The
financial statements of the Company, together with the related
notes, included or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act and fairly present in all
material respects the financial condition of the Company as of the
dates indicated and the results of operations and changes in cash
flows for the periods therein specified in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved; and the supporting schedules
included in the Registration Statement present fairly in all
material respects the information required to be stated
therein. No other financial statements or schedules are
required to be included in the Registration Statement, the Time of
Sale Disclosure Package or the Final Prospectus. To the
Company’s knowledge, AGCA, Inc. and Child, Van Wagoner &
Bradshaw, PLLC are independent public accounting firms with respect
to the Company within the meaning of the Securities Act and the
Rules and Regulations.
(iv) The
Company had a reasonable basis for, and made in good faith, each
“forward-looking statement” (within the meaning of
Section 27A of the Act or Section 21E of the Exchange Act)
contained or incorporated by reference in the Registration
Statement, the Time of Sale Disclosure Package or the Final
Prospectus.
(v) All
statistical or market-related data included or incorporated by
reference in the Registration Statement, the Time of Sale
Disclosure Package or the Final Prospectus are based on or derived
from sources that the Company reasonably believes to be reliable
and accurate, and the Company has obtained the written consent to
the use of such data from such sources, to the extent
required.
(vi) To
the knowledge of the Company, there is no action pending to delist
the Common Shares from the NASDAQ Global Market (“ NASDAQ
Global Market ”), nor has the Company received any
written notification that the NASDAQ Global Market is currently
contemplating terminating such listing. When issued, the
Shares will be listed on the NASDAQ Global Market.
(vii) The
Shares have been or will be qualified for sale under the securities
laws of such United States jurisdictions as Roth reasonably
determines, or are or will be exempt from the qualification
requirements of such jurisdictions; provided that the Company shall
not be required to (A) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where
it would not otherwise be required to so qualify, (B) file any
general consent to service of process in any such jurisdiction, or
(C) subject itself to taxation in any such jurisdiction if it is
not otherwise so subject.
(viii) The
Company has not taken, directly or indirectly, any action that is
designed to or that has constituted or that would reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale of
the Shares.
(ix) The
Company is not an “ ineligible issuer ,” as
defined in Rule 405 of the Securities Act. Subject to
Section 6(d) below, the Company represents and warrants that it has
not prepared or had prepared on its behalf or used or referred to
any Issuer Free Writing Prospectus in connection with the
Offering. Subject to Section 6(d) below, the Company has
not distributed and the Company will not distribute, prior to the
completion of the distribution of the Shares, any offering material
in connection with the Offering other than subscription agreements
between the Company and the Investors and the Base Prospectus, the
Final Prospectus, the Registration Statement, and copies of the
documents, if any, incorporated by reference therein.
(x) The
Company is not and, after giving effect to the offering and sale of
the Shares, will not be required to register as an
“investment company,” as such term is defined in the
Investment Company Act of 1940, as amended.
(b) Any
certificate signed by any officer of the Company and delivered to
Roth or to Roth’s counsel in connection with this Offering
shall be deemed a representation and warranty by the Company to
Roth as to the matters covered thereby.
4. Representations
and Warranties Regarding the Company.
(a) The
Company represents and warrants to and agrees with, Roth, except as
set forth in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus, as follows:
(i) The
Company and each of its subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation. The Company and each of its
subsidiaries has the corporate power and authority to own its
properties and conduct its business as currently being carried on
and as described in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus, and is duly qualified
to do business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases real property or in which
the conduct of its business makes such qualification necessary and
in which the failure to so qualify would have or is reasonably
likely to result in a material adverse effect upon the business,
properties, operations, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as
a whole, or in its ability to perform its obligations under this
Agreement (“ Material Adverse Effect
”).
(ii) The
Company has the corporate power and authority to enter into this
Agreement. This Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid,
legal and binding obligation of the Company, enforceable in
accordance with its terms, except as rights to indemnity hereunder
may be limited by federal or state laws and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(iii) The
execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not (A)
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any law, rule or regulation to
which the Company or any subsidiary is subject, or by which any
property or asset of the Company or any subsidiary is bound or
affected, (B) conflict with, result in any violation or breach of,
or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any
right of termination, amendment, acceleration or cancellation (with
or without notice, lapse of time or both) of, any agreement, lease,
credit facility, debt, note, bond, mortgage, indenture or other
instrument or binding obligation or other binding understanding
(the “ Contracts ”) to which the Company or any
subsidiary is a party of by which any property or asset of the
Company or any subsidiary is bound or affected, or (C) result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, the Company’s charter or
bylaws, except in the case of clauses (A) and (B) such
breaches, violations, defaults, or conflicts which do not
individually or in the aggregate be reasonably likely to result in
a Material Adverse Effect.
(iv) All
consents, approvals, orders, authorizations and filings required on
the part of the Company and its subsidiaries in connection with the
execution, delivery or performance of this Agreement have been
obtained or made, other than such consents, approvals, orders and
authorizations the failure of which to make or obtain is not
reasonably likely to result in a Material Adverse
Effect.
(v) All
of the issued and outstanding shares of capital stock of the
Company are duly authorized and validly issued, fully paid and
nonassessable, and have been issued in material compliance with all
applicable securities laws, and conform in all material respects to
the description thereof in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus. Except
for the issuances of options or restricted stock or restricted
stock units in the ordinary course of business, since the
respective dates as of which information is provided in the
Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus, the Company has not entered into or granted any
convertible or exchangeable securities, options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company any shares of the capital stock of the
Company. The Shares, when issued, will be duly
authorized and validly issued, fully paid and nonassessable, issued
in material compliance with all applicable securities laws, and
free of preemptive, registration or similar rights.
(vi) Except
as set forth in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus, the Company does not
own, directly or indirectly, a majority of the capital stock or
other ownership interest in any partnership, corporation, business
trust, limited liability company, limited liability partnership,
joint stock company, trust, unincorporated association, joint
venture or other entity.
(vii) Each
of the Company and its subsidiaries has filed all foreign, federal,
state and local returns (as hereinafter defined) required to be
filed with taxing authorities prior to the date hereof or has duly
obtained extensions of time for the filing thereof. Each
of the Company and its subsidiaries has paid all taxes (as
hereinafter defined) shown as due on such returns that were filed
and has paid all taxes imposed on or assessed against the Company
or such respective subsidiary. The term “
taxes ” mean all federal, state, local, foreign, and
other net income, gross income, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, lease, service,
service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs,
duties or other taxes, fees, assessments, or charges of any kind
whatever, together with any interest and any penalties, additions
to tax, or additional amounts with respect thereto. The
term “ returns ” means all returns,
declarations, reports, statements, and other documents required to
be filed in respect to taxes.
(viii) Since
the respective dates as of which information is given in the
Registration Statement, the Time of Sale Disclosure Package or the
Final Prospectus, (a) neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations,
direct or contingent, required to be reflected on a balance sheet
in accordance with generally accepted accounting principles, or
entered into any material transactions other than in the ordinary
course of business, (b) the Company has not declared or paid any
dividends or made any distribution of any kind with respect to its
capital stock; (c) there has not been any change in the capital
stock of the Company or any of its subsidiaries (other than a
change in the number of outstanding shares of Common Stock due to
the issuance of shares upon the exercise of outstanding options or
warrants or the issuance of restricted stock awards or restricted
stock units under the Company’s existing stock awards
plan, or any new grants thereof in the ordinary course of
business), (d) there has not been any material change in the
Company’s long-term or short-term debt, and (e) there has not
been the occurrence of any Material Adverse Effect.
(ix) There
is not pending or, to the knowledge of the Company, threatened, any
action, suit or proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company is the subject before or by any court or governmental
agency, authority or body, or any arbitrator or mediator, which is
reasonably likely to result in a Material Adverse
Effect.
(x) The
Company and each of its subsidiaries holds, and is in compliance
with, all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders (“
Permits ”) of any governmental or self-regulatory
agency, authority or body required for the conduct of its business,
and all such Permits are in full force and effect, in each case
except where the failure to hold, or comply with, any of them is
not reasonably likely to result in a Material Adverse
Effect.
(xi) The
Company and its subsidiaries have good and marketable title to all
property (whether real or personal) described in the Registration
Statement, the Time of Sale Disclosure Package and the Final
Prospectus as being owned by them that are material to the business
of the Company, in each case free and clear of all liens, claims,
security interests, other encumbrances or defects, except those
that are not reasonably likely to result in a Material Adverse
Effect. The property held under lease by the Company and
its subsidiaries is held by them under valid, subsisting and
enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with
the conduct of the business of the Company or its
subsidiaries.
(xii) The
Company and each of its subsidiaries owns or possesses or has valid
right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses, inventions, trade secrets and
similar rights (“ Intellectual Property ”)
necessary for the conduct of the business of the Company and its
subsidiaries as currently carried on and as described in the
Registration Statement, the Time of Sale Disclosure Package and the
Final Prospectus, except those the absence of which are not
reasonably likely to result in a Material Adverse
Effect. To the knowledge of the Company, no action or
use by the Company or any of its subsidiaries will involve or give
rise to any infringement of, or license or similar fees for, any
Intellectual Property of others, except where such action, use,
license or fee is not reasonably likely to result in a Material
Adverse Effect. Neither the Company nor any of its
subsidiaries has received any written notice alleging any such
material infringement or fee.
(xiii) The
Company and each of its subsidiaries has complied with, is not in
violation of, and has not received any written notice of violation
relating to any applicable law, rule or regulation relating to the
conduct of its business, or the ownership or operation of its
property and assets, including, without limitation (to the extent
applicable), (A) the Currency and Foreign Transactions Reporting
Act of 1970, as amended, or any money laundering laws, rules or
regulations, (B) any laws, rules or regulations related to health,
safety or the environment, including those relating to the
regulation of hazardous substances, (C) the Sarbanes-Oxley Act and
the rules and regulations of the Commission thereunder, (D) the
Foreign Corrupt Practices Act of 1977 and the rules and regulations
thereunder, and (E) the Employment Retirement Income Security Act
of 1974 and the rules and regulations thereunder, in each case
except where the failure to be in compliance is not reasonably
likely to result in a Material Adverse Effect.
(xiv) Neither
the Company nor any of its subsidiaries nor, to the knowledge of
the Company, any director, officer, employee, representative, agent
or affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“ OFAC
”); and the Company will not directly or indirectly use the
proceeds of the Offering of the Shares contemplated hereby, or
lend, contribute or otherwise make available such proceeds to any
person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(xv) The
Company and each of its subsidiaries carries, or is covered by,
insurance in such amounts and covering such risks as is customary
for companies engaged in similar businesses in similar
industries.
(xvi) No
labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent that is reasonably likely to result in a Material Adverse
Effect.
(xvii) Neither
the Company nor any of its subsidiaries is in violation, breach or
default under its certificate of incorporation, bylaws or other
equivalent organizational or governing documents, except where the
violation is not reasonably likely to result in a Material Adverse
Effect.
(xviii) Neither the
Company, its subsidiaries nor, to its knowledge, any other
party is in violation, breach or default of any Contract that
is reasonably likely to result in a Material Adverse
Effect.
|
