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EXHIBIT 10.43
STARTECH ENVIRONMENTAL CORPORATION
AMENDED AND RESTATED PLACEMENT AGENT AGREEMENT
Dated as of: October 18, 2005
Monitor Capital Inc.
9171 Towne Centre Drive, Suite 465
San Diego, CA 92122
Ladies and Gentlemen:
The undersigned, Startech Environmental Corporation, a Colorado
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 September 15, 2005 by and among the parties
hereto. The Company
hereby engages the Placement Agent to act as its exclusive
placement agent in
connection with the Amended and Restated 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"), 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. Upon the execution of this Agreement, the
Company shall
issue to the Placement Agent or its designee 4,348 shares of the
Company's
Common Stock, which has previously been paid (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 applicable
to the
Placement Agent generally and applicable to the Placement
Agent's participation
in the Offering.
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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.
(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.
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(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
Colorado. 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 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
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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.
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(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 req
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