CHINA WORLD TRADE CORPORATION PLACEMENT AGENT AGREEMENT Dated as of: June 30, 2005 Cambria Capital, LLC Ladies and Gentlemen:
CHINA
WORLD TRADE CORPORATION
Dated
as
of: June
30,
2005
Cambria
Capital, LLC
Ladies
and Gentlemen:
The
undersigned, China World Trade Corporation, a Nevada corporation (the
“Company”),
hereby agrees with
Cambria
Capital, LLC (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
November 15, 2004 (the “Standby
Equity Distribution Agreement”),
pursuant to which the Company shall issue and sell to the Cornell Capital
Partners, LP, a Delaware Limited Partnership (the “Investor”),
from
time to time, and the Investor shall purchase from the Company (the
“Offering”)
up to
Thirty Million U.S. Dollars ($30,000,000) of the Company’s common stock (the
“Commitment
Amount”),
par
value US$0.001 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, 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 warrants are sometimes referred
to hereinafter as the “Securities.”
The
Placement Agent shall not be obligated to sell any Securities.
2.
Compensation.
Upon
the
execution of this Agreement, as compensation for its services hereunder, the
Placement Agent shall be entitled on each Advance Date pursuant to the Standby
Equity Distribution Agreement to the payment by the Company, directly from
the
gross proceeds held in escrow, of an amount equal to four percent (4%) of the
amount of each Advance.
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3.
Representations,
Warranties and Covenants of the Placement Agent.
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.
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 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,
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.
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(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 the Standby Equity Distribution
Agreement has been duly authorized and, when issued and paid for in accordance
with the Standby Equity Distribution Agreement and 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.
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(vi) The
Company has been duly organized and is validly existing as a corporation in
good
standing under the laws of the State of Nevada. 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.
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(iv) 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 Standby Equity Distribution Agreement, 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) 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.
(xi) Except
as
described in the Offering Materials and the fees to World Trade Center
Association, 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.
(xii) 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.
(xiii) 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
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(xiv) 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 proceeding, or (B) if not given in the
past, might have had a materially adverse effect on the assets, business or
operations of the Company as reflected in any of the financial statements
contained in the Offering Materials, or (C) if not continued in the future,
might adversely affect the assets, business, operations or prospects of the
Company in the future.
5.
Certain
Covenants and Agreements of the
Company.
The
Company covenants and agrees at its expense and without any expense to the
Placement Agent as follows:
A.
To
advise the Placement Agent
and the
Investor
of any
material adverse change in the Company’s financial condition, prospects or
business or of any development materially affecting the Company or rendering
untrue or misleading any material statement in the Offering Materials occurring
at any time as soon as the Company is either informed or becomes aware
thereof.
B.
To
use its commercially reasonable efforts to cause the Common
Stock issuable in connection with the Standby Equity Distribution Agreement
to
be qualified or registered for sale on terms consistent with those stated in
the
Registration Rights Agreement and under the securities laws of such
jurisdictions as the Placement Agent and the Investor shall reasonably request.
Qualification, registration and exemption charges and fees shall be at the
sole
cost and expense of the Company.
C.
Upon
written request, to provide and continue to provide the
Placement Agent and the Investor copies of all quarterly financial statements
and audited annual financial statements prepared by or on behalf of the Company,
other reports prepared by or on behalf of the Company for public disclosure
and
all documents delivered to the Company’s stockholders.
D.
To
deliver, during the registration period of the Standby
Equity Distribution Agreement, to the Investor
upon the
Investor’s
request, within fifty (50) days, a statement of its income for each such
quarterly period, and its balance sheet and a statement of changes in
stockholders’ equity as of the end of such quarterly period, all in reasonable
detail, certified by its principal financial or accounting officer; (ii) within
one hundred five (105) days after the close of each fiscal year, its balance
sheet as of the close of such fiscal year, together with a statement of income,
a statement of changes in stockholders’ equity and a statement of cash flow for
such fiscal year, such balance sheet, statement of income, statement of changes
in stockholders’ equity and statement of cash flow to be in reasonable detail
and accompanied by a copy of the certificate or report thereon of independent
auditors if audited financial statements are prepared; and (iii) a copy of
all
documents, reports and information furnished to its stockholders at the time
that such documents, reports and information are furnished to its
stockholders,
if such
information is unavailable on the official website of the SEC.
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E.
To
comply with the terms of the Offering
Materials.
F.
To
ensure that any transactions between or among the Company,
or any of its officers, directors and affiliates be on terms and conditions
that
are no less favorable to the Company, than the terms and conditions that would
be available in an “arm’s length” transaction with an independent third
party.
6.
Indemnification
and
Limitation of Liability.
A. The
Company hereby agrees that it will indemnify and hold the Placement Agent and
each officer, director, shareholder, employee or representative of the Placement
Agent and each person controlling, controlled by or under common control with
the Placement Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act or the SEC’s Rules and Regulations promulgated thereunder
(the “Rules
and Regulations”),
harmless from and against any and all loss, claim, damage, liability, cost
or
expense whatsoever (including, but not limited to, any and all reasonable legal
fees and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or proceeding,
including any inquiry or investigation, commenced or threatened, or any claim
whatsoever or in appearing or preparing for appearance as a witness in any
action, suit or proceeding, including any inquiry, investigation or pretrial
proceeding such as a deposition) to which the Placement Agent or such
indemnified person of the Placement Agent may become subject under the 1933
Act,
the 1934 Act, the Rules and Regulations, or any other federal or state law
or
regulation, common law or otherwise, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (a)
Section 4 of this Agreement, (b) the Offering Materials (except those written
statements relating to the Placement Agent given by the
Placement Agent
for
inclusion therein), (c) any application or other document or written
communication executed by the Company or based upon written information
furnished by the Company filed in any jurisdiction in order to qualify the
Common Stock under the securities laws thereof, or any state securities
commission or agency; (ii) the omission or alleged omission from documents
described in clauses (a), (b) or (c) above of a material fact required to be
stated therein or necessary to make the statements therein not misleading;
or
(iii) the breach of any representation, warranty, covenant or agreement made
by
the Company in this Agreement. The Company further agrees that upon demand
by an
indemnified person, at any time or from time to time, it will promptly reimburse
such indemnified person for any loss, claim, damage, liability, cost or expense
actually and reasonably paid by the indemnified person as to which the Company
has indemnified such person pursuant hereto. Notwithstanding the foregoing
provisions of this Paragraph 7(A), any such payment or reimbursement by the
Company of fees, expenses or disbursements incurred by an indemnified person
in
any proceeding in which a final judgment by a court of competent jurisdiction
(after all appeals or the expiration of time to appeal) is entered against
the
Placement Agent or such indemnified person based upon specific finding of fact
that the Placement Agent or such indemnified person’s gross negligence or
willful misfeasance will be promptly repaid to the Company.
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B.
The
Placement Agent hereby agrees that it will indemnify and
hold the Company and each officer, director, shareholder, employee or
representative of the Company, and each person controlling, controlled by or
under common control with the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act or the Rules and Regulations, harmless
from and against any and all loss, claim, damage, liability, cost or expense
whatsoever (including, but not limited to, any and all reasonable legal fees
and
other expenses and disbursements incurred in connection with investigating,
preparing to defend or defending any action, suit or proceeding, including
any
inquiry or investigation, commenced or threatened, or any claim whatsoever
or in
appearing or preparing for appearance as a witness in any action, suit or
proceeding, including any inquiry, investigation or pretrial proceeding such
as
a deposition) to which the Company or such indemnified person of the Company
may
become subject under the 1933 Act, the 1934 Act, the Rules and Regulations,
or
any other federal or state law or regulation, common law or otherwise, arising
out of or based upon (i) the material
breach of any representation, warranty, covenant or agreement made by the
Placement Agent in this Agreement, or (ii)
any
false or misleading information provided to the Company in
writing by
one of
the Placement Agent’s indemnified persons
specifically for inclusion in the Offering Materials.
C.
Promptly
after receipt by an indemnified party of notice of
commencement of any action covered by Section 7(A), (B), (C) or (D), the party
to be indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified
party to so notify the indemnifying party shall not relieve the indemnifying
party of its obligation to indemnify any other indemnified party that has given
such notice and shall not relieve the indemnifying party of any liability
outside of this indemnification if not materially prejudiced thereby. In the
event that any action is brought against the indemnified party, the indemnifying
party will be entitled to participate therein and, to the extent it may desire,
to assume and control the defense thereof with counsel chosen by it which is
reasonably acceptable to the indemnified party. After notice from the
indemnifying party to such indemnified party of its election to so assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under such Section 7(A), (B), (C), or (D) for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, but the indemnified party may, at its own expense, participate in
such
defense by counsel chosen by it, without, however, impairing the indemnifying
party’s control of the defense. Subject to the proviso of this sentence and
notwithstanding any other statement to the contrary contained herein, the
indemnified party or parties shall have the right to choose its or their own
counsel and control the defense of any action, all at the expense of the
indemnifying party if (i) the employment of such counsel shall have
been
authorized in writing by the indemnifying party in connection with the defense
of such action at the expense of the indemnifying party, or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
such indemnified party to have charge of the defense of such action within
a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may
be
defenses available to it or them which are different from or additional to
those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses of one additional counsel shall be borne by the
indemnifying party; provided, however, that the indemnifying party shall not,
in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstance, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys at any time for all such indemnified parties. No
settlement of any action or proceeding against an indemnified party shall be
made without the consent of the indemnifying party.
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D.
In
order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7(A) or
7(B)
is due in accordance with its terms but is for any reason held by a court to
be
unavailable on grounds of policy or otherwise, the Company and the Placement
Agent shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with the
investigation or defense of same) which the other may incur in such proportion
so that the Placement Agent shall be responsible for such percent of the
aggregate of such losses, claims, damages and liabilities as shall equal the
percentage of the gross proceeds paid to the Placement Agent and the Company
shall be responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation within the meaning of Section 11(f) of the
1933
Act shall be entitled to contribution from any person who was not guilty of
such
fraudulent misrepresentation. For purposes of this Section 7(F), any person
controlling, controlled by or under common control with the Placement Agent,
or
any partner, director, officer, employee, representative or any agent of any
thereof, shall have the same rights to contribution as the Placement Agent
and
each person controlling, controlled by or under common control with the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act
and each officer of the Company and each director of the Company shall have
the
same rights to contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit
or
proceeding against such party in respect of which a claim for contribution
may
be made against the other party under this Section 7(D), notify such party
from
whom contribution may be sought, but the omission to so notify such party shall
not relieve the party from whom contribution may be sought from any obligation
they may have hereunder or otherwise if the party from whom contribution may
be
sought is not materially prejudiced thereby.
E.
The
indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
any
investigation made by or on behalf of any indemnified person or any termination
of this Agreement.
F.
The
Company hereby waives, to the fullest extent permitted by
law, any right to or claim of any punitive, exemplary, incidental, indirect,
special, consequential or other damages (including, without limitation, loss
of
profits) against the Placement Agent and each officer, director, shareholder,
employee or representative of the placement agent and each person controlling,
controlled by or under common control with the Placement Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act or the
Rules
and Regulations arising out of any cause whatsoever (whether such cause be
based
in contract, negligence, strict liability, other tort or otherwise).
Notwithstanding anything to the contrary contained herein, the aggregate
liability of the Placement Agent and each officer, director, shareholder,
employee or representative of the Placement Agent and each person controlling,
controlled by or under common control with the Placement Agent within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act or the
Rules
and Regulations shall not exceed the compensation received by the Placement
Agent pursuant to Section 2 hereof. This limitation of liability shall apply
regardless of the cause of action, whether contract, tort (including, without
limitation, negligence) or breach of statute or any other legal or equitable
obligation.
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7.
Payment
of Expenses.
The
Company hereby agrees to bear all of the expenses in connection with the
Offering, including, but not limited to the following: filing fees, printing
and
duplicating costs, advertisements, postage and mailing expenses with respect
to
the transmission of Offering Materials, registrar and transfer agent fees,
escrow agent fees and expenses, fees of the Company’s counsel and accountants,
issue and transfer taxes, if any.
8.
Conditions
of Closing.
The
Closing shall be held at the offices of the Investor or its counsel. The
obligations of the Placement Agent hereunder shall be subject to the continuing
accuracy of the representations and warranties of the Company and
the
Investor herein
as
of the date hereof and as of the Date of Closing (the “Closing
Date”)
with
respect to the Company or
the
Investor, as the case may be, as
if it
had been made on and as of such Closing Date; the accuracy on and as of the
Closing Date of the statements of the officers of the Company made pursuant
to
the provisions hereof; and the performance by the Company and
the
Investor on
and as
of the Closing Date of its covenants and obligations hereunder and to the
following further conditions:
A.
Upon
the effectiveness of a registration statement covering the
Standby Equity Distribution Agreement, the Investor
and the Placement
Agent shall receive the opinion of Counsel to the Company, dated as of the
date
thereof, which opinion shall be in form and substance reasonably satisfactory
to
the Investor, their counsel and the Placement Agent.
B.
At
or prior to the Closing,
the
Investor and
the
Placement Agent shall have been furnished such documents, certificates and
opinions as it may reasonably require for the purpose of enabling them to review
or pass upon the matters referred to in this Agreement and the Offering
Materials, or in order to evidence the accuracy, completeness or satisfaction
of
any of the representations, warranties or conditions herein
contained.
C.
At
and prior to the Closing, (i) there shall have been no
material adverse change nor development involving a prospective change in the
condition or prospects or the business activities, financial or otherwise,
of
the Company from the latest dates as of which such condition is set forth in
the
Offering Materials; (ii) there shall have been no transaction, not in the
ordinary course of business except the transactions pursuant to the Securities
Purchase Agreement entered into by the Company on the date hereof which has
not
been disclosed in the Offering Materials or to the Placement Agent in writing;
(iii) except as set forth in the Offering Materials, the Company shall not
be in
default under any provision of any instrument relating to any outstanding
indebtedness for which a waiver or extension has not been otherwise received;
(iv) except as set forth in the Offering Materials, the Company shall not have
issued any securities (other than those to be issued as provided in the Offering
Materials) or declared or paid any dividend or made any distribution of its
capital stock of any class and there shall not have been any change in the
indebtedness (long or short term) or liabilities or obligations of the Company
(contingent or otherwise) and trade payable debt; (v) no material amount of
the
assets of the Company shall have been pledged or mortgaged, except as indicated
in the Offering Materials; and (v) no action, suit or proceeding, at law or
in
equity, against the Company or affecting any of its properties or businesses
shall be pending or threatened before or by any court or federal or state
commission, board or other administrative agency, domestic or foreign, wherein
an unfavorable decision, ruling or finding could materially adversely affect
the
businesses, prospects or financial condition or income of the Company, except
as
set forth in the Offering Materials.
10
D.
If
requested at
Closing
the
Investor and
the
Placement Agent shall receive a certificate of the Company signed by an
executive officer and chief financial officer, dated as of the applicable
Closing, to the effect that the conditions set forth in subparagraph (C) above
have been satisfied and that, as of the applicable closing, the representations
and warranties of the Company set forth herein are true and
correct.
E.
The
Placement Agent shall have no obligation to insure that (x)
any check, note, draft or other means of payment for the Common Stock will
be
honored, paid or enforceable against the Investor in accordance with its terms,
or (y) subject to the performance of the Placement Agent’s obligations and the
accuracy of the Placement Agent’s representations and warranties hereunder, (1)
the Offering is exempt from the registration requirements of the 1933 Act or
any
applicable state “Blue Sky” law or (2) the Investor is an Accredited
Investor.
9.
Termination.
This
Agreement shall be co-terminus with, and terminate upon the same terms and
conditions as those set forth in, the Standby Equity Distribution Agreement.
The
rights of the Investor and the obligations of the Company under the Registration
Rights Agreement, and the rights of the Placement Agent and the obligations
of
the Company shall survive the termination of this Agreement
unabridged.
10.
Miscellaneous.
A.
This
Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all which shall be deemed
to be one and the same instrument.
B.
Any
notice required or permitted to be given hereunder shall be
given in writing and shall be deemed effective when deposited in the United
States mail, postage prepaid, or when received if personally delivered or faxed
(upon confirmation of receipt received by the sending party), addressed as
follows
to such
other address of which written notice is given to the others):
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If
to Placement Agent, to:
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Cambria
Capital, LLC
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▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇ ▇▇▇▇▇, Senior Managing Director
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Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
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Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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If
to the Company, to:
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China
World Trade Corporation
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Room
1217, 12th
Floor, The ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇▇ ▇▇▇▇, Chief Financial Officer
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Telephone:
(▇▇▇) ▇▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇▇-▇▇▇▇
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With
a copy to:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, P.A.
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▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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11
C. This
Agreement shall be governed by and construed in all respects under the
laws
of
the State of Nevada , without reference to its conflict of laws rules or
principles. Any suit, action, proceeding or litigation arising out of or
relating to this Agreement shall be brought and prosecuted in such federal
or
state court or courts located within the State of New York as provided by law.
The parties hereby irrevocably and unconditionally consent to the jurisdiction
of each such court or courts located within the State of New York and to service
of process by registered or certified mail, return receipt requested, or by
any
other manner provided by applicable law, and hereby irrevocably and
unconditionally waive any right to claim that any suit, action, proceeding
or
litigation so commenced has been commenced in an inconvenient
forum.
D.
This Agreement and the other agreements referenced herein contain the
entire
understanding between the parties hereto and may not be modified or amended
except by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought.
E.
If any provision of this Agreement shall be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provision of
this
Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
12
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first written
above.
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COMPANY:
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CHINA
WORLD TRADE CORPORATION
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By:
/s/ ▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇
▇. ▇▇▇
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Title: CEO
& Vice Chairman
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PLACEMENT
AGENT:
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CAMBRIA
CAPITAL, LLC
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By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
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Title: President
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13