Exhibit 10.5
STARTECH ENVIRONMENTAL
CORPORATION
PLACEMENT AGENT
AGREEMENT
Dated as of: April 11,
2007
Newbridge
Securities Corporation
1451 Cypress
Creek Road, Suite 204
Fort
Lauderdale, Florida 33309
The undersigned, Startech Environmental
Corporation, a Colorado corporation (the “ Company
”), hereby agrees with Newbridge Securities Corporation (the
“ Placement Agent ”) 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 between
the Company and Cornell Capital Partners, LP (the “
Investor ”) (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 Dollars ($10,000,000)
(the “ Commitment Amount ”) of the
Company’s common stock, no par value (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-Q 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 under the Standby Equity
Distribution Agreement is sometimes referred to hereinafter as the
“ Securities .” The Placement Agent shall not be
obligated to sell any Securities.
A. Upon the execution of this Agreement, the
Company shall pay the Placement Agent or its designee a fee of
$5,000.
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 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 in good standing
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.
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, 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, 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 and the Standby Equity Distribution Agreement 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 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 Company is 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 (as defined in the Standby Equity
Distribution Agreement). The Company has all corporate power and
authority to enter into this Agreement, the Standby Equity
Distribution Agreement, the Registration Rights Agreement, and to
carry out the provisions and conditions hereof and thereof, and all
material consents, authorizations, approvals and orders required in
connection herewith and therewith have been obtained (except as
specifically contemplated by this Agreement or the Standby Equity
Distribution Agreement and as required under the 1933 Act and any
applicable state securities laws). 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 as may
be required under applicable federal and state securities
laws.
(iv) The Company has not suffered any Material
Adverse Effect since October 31, 2006, 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.
(v) 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 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 material franchise, license, permit, judgment,
decree or order, or in violation of any material statute, rule or
regulation. Neither the execution and delivery of this Agreement,
the Standby Equity Distribution Agreement or the Registration
Rights Agreement 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 material indenture, mortgage, deed of trust,
note, loan or any other agreement or instrument evidencing an
obligation for borrowed money, or any other material 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 and (b) as disclosed in the Offeri