TRUST LICENSING, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: April 14, 2005
Monitor Capital, Inc.
9171 Towne Centre Drive, Suite 465
San Diego, CA 92122
Ladies and Gentlemen:
The undersigned, Trust Licensing, 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
Ten Million U.S. Dollars ($10,000,000) of
the Company's common stock (the
"Commitment Amount"), par value US$0.0001
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 Annual Reportt on Form 10-KSB 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 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 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
"1933 Act"), the Securities Exchange Act
of 1934 (the "1934 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 1934 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.
(vi) The securities are being issued to the
Placement Agent for its own account,
for investment and without any view to the
distribution, assignment or resale to
others or fractionalization in whole or in
part. The Placement Agent agrees not
to assign or in any way transfer the
Placement Agent's rights to the securities
or any interest therein and acknowledges
that the Company will not recognize any
purported assignment or transfer except in
accordance with applicable Federal
and state securities laws. No other person
has or will have a direct or indirect
beneficial interest in the securities. The
Placement Agent agrees not to sell,
hypothecate or otherwise transfer the
Placement Agent's securities unless the
securities are registered under Federal and
applicable state securities laws or
unless, in the opinion of counsel
satisfactory to the Company, an exemption from
such laws is available.
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 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, 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 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 1933 Act, the
1934 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, 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
1933 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) Since August 24, 2004, 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 pr
