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
