EX-1
BROKER-DEALER AGREEMENT
AMERIVET SECURITIES
BROKER-DEALER AGREEMENT
Agreement made as of the date which is set forth at the end of this
Agreement by and between the "Issuer" (specifically identified on
Page 5), and AMERIVET SECURITIES, a CALIFORNIA corporation, having
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▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ (hereinafter referred to as the "Company"). The
Company is engaged as selling group manager in offering to qualified
investors only . The offering of the Interests is being made on a
"best efforts" basis, with no minimum sales requirement. As used in
this Agreement, "Offering Document" refers to the confidential
Private Placement Memoranda distributed by the Company in connection
with the offering of Interests issued by the Issuer, including the
exhibits thereto, unless the Offering Document or exhibits have been
supplemented or amended, in which event the term shall refer, from
and after the time of the supplements or amendments to such Offering
Documents and supplements. The Issuer desires to offer and sell the
Interests pursuant to a non-public offering under the provisions of
SECTION 4(2) of the Securities Act of 1933, as amended (hereinafter
referred to as the "Act") and Rule 506 of Regulation D. The
subscribers for Interests (hereinafter referred to as "Investors")
will be required to enter into a Subscription Agreement, a copy of
which is attached to the Offering Document as an Exhibit thereto.
The Company and the Issuer hereby agree to the placement by the
Company of the Interests under the following terms and conditions:
SECTION 1. Appointment as Non-Exclusive Broker Dealer. The Company
is hereby appointed, subject to the provisions of this Agreement, to
act as non-exclusive broker-dealer for the Interests, on both a
retail and wholesale basis.
SECTION 2. Representation and Warranties of Company. The Company
hereby covenants, represents, and warrants to and for the benefit of
the Issuer that:
(a) The Company is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, and is a member in good
standing of the National Association of Securities Dealers,
International, Inc.. (hereinafter referred to as the "NASD"). The
Company will notify the Issuer in writing of any change in its status
as described in this subsection (a).
(b) There is no action, suit, litigation or proceeding before or by
any court or governmental agency pending or threatened against, or
affecting or involving the property of the business of the company or
its Affiliates, which might result in any material adverse change of
the condition (financial or otherwise), business or prospects of the
company or its Afiliates.
(c) The Company will aid in the placement of the Interests on a
"best efforts" nonexclusive basis through the distribution subject to
applicable securities laws and regulations of the Certificate of
Incorporation or By-Laws of the Company or any law or any agreement
to which the Company is a party or by which the Company and/or its
assets are bound, or any order, rule or agency having jurisdiction
over the Company as described in the Offering Document.
(d) The Company is currently covered by Errors and Omissions (
E.N.O.) Insurance.
SECTION 3. Representation and Warranties of the Issuer. The Issuer
hereby covenants, represents and warrants to and for the benefit of
the Company that:
(a) The Issuer will, at all times, comply with all applicable rules,
regulations and orders of any court, government or unit agency
thereof.
(b) This Agreement has been duly and validly authorized, executed and
delivered by and on behalf of the Issuer and constitutes the valid
and binding agreement of the Issuer enforceable in accordance with
its terms subject to any bankruptcy, insolvency, moratorium,
reorganization or other laws affecting the enforceability of
creditor's rights generally, from time to time in effect and except
as the indemnification provisions of SECTION 6 hereof may be limited
under the federal securities laws.
(c) The Issuer has the corporate power and authority to execute,
deliver and perform this Agreement and has taken all action required
by law, its certificate of incorporation, its By-Laws or otherwise to
authorize the execution, delivery and performance of this Agreement
and the execution, delivery and performance of this Agreement does
not violate the provisions of the Certificate of Incorporation. or
By-Laws of the Issuer or any law or any agreement to which the
Issuer is a party or of any court or any governmental body or
administrative agency having jurisdiction over the Issuer, as
described in the Offering Document.
SECTION 4. Compensation. The Company may receive, as its compensation
from the Issuer for acting as the sales agent hereunder the following
compensation:
(a) For each Interest that is sold by the Company, compensation
equal to a percentage of the purchase which is paid by the applicable
Investor for the applicable Interest. The aforementioned percentage
may be as follows: (10 ) % commission; (5) a % due diligence fee,
and (3) fair and reasonable reimbursement of legitimate expenses
incurred in the selling of the Interests, all due and payable upon
the receipt and acceptance of the Interest sold.
(b) The commission referred to in paragraph (a) of this SECTION 4
may be paid to the Company upon satisfaction of the following:
(i) The Issuer is in receipt of all required subscription
documents from the applicable Investor.
(ii) The applicable Investor has had his subscription documents
accepted by the Issuer, and
(iii) The Investor's payment for his Interests has cleared such
Investor's bank.
(c) Payments of compensation to the Company pursuant to this
Agreement shall only be made to the extent permitted under applicable
state and federal securities laws.
(d) Under no circumstances may any portion of the purchase price
which is received from a subscriber of the securities be withheld by
the Company toward payment of any compensation which is due to the
Company.
(e) The Company acknowledges that the Issuer shall have the right,
in its sole and absolute discretion, to reject any investor which is
secured by or through the Company, in which case no compensation
shall be due to the Company with respect to said rejected Investor.
SECTION 5. Conditions of Performance. The Issuer acknowledges that
the obligations of the Company are limited to a "best efforts" basis,
and that there is no obligation or undertaking, express or implied,
that the Company is making a commitment to purchase or sell a minimum
number of Interests. In addition, the duties and obligations of the
parties which are provided for in this agreement shall be subject to:
(A) the accuracy, between the date hereof and the date of completion
of the sale of the Interests of the representations and warranties
which are made by the parties herein; (B) with all aspects of Rule
504-506, and Regulation D which are required to be complied with by
the parties hereunder in order that the offering of the Interests be
exempt from the registration requirements of the Act under the
provisions of Rules 504-506 and Regulation D.
SECTION 6. Indemnification. The Issuer agrees to indemnify and hold
harmless the Company and its employees, officers, agents officers,
directors and each person, if any, who controls the Company within
the meaning of SECTION 15 of the Act, from and against any losses,
claims, damages or liabilities, joint or several, to which any of
them might become subject, under said Act or otherwise, (including
any legal or other reasonable expenses incurred in connection
therewith) insofar as such losses, claims damages or liabilities (or
such actions in respect thereof) arise out of or are based upon (i) a
failure by the Issuers to comply with the applicable laws, rules and
regulations governing qualification and conduct of Issuers or
violation by the Issuer of Blue Sky laws of any state in which the
Interests shall be offered or sold; or (ii) any violation of the
covenants, representations, or warranties which are contained in this
Agreement.
The indemnifying party shall reimburse the indemnified party for
legal or other reasonable expenses incurred by such indemnified party
in connection with investigating or defending any such action or
claim or in connection with its participation as a third party
witness in any action or administrative proceeding which is commenced
or threatened. In no case shall the indemnified party be liable under
this indemnity provision unless such party is notified in writing of
the nature of the claim within a reasonable time of its assertion. In
case anv such action (other than an administrative action b ' v the
Securities and Exchange Commission, any state securities or blue sky
authority or any self-regulatory organization) in which the
indemnified party is named, the indemnifyim, party will be entitled
to participate therein.
SECTION 7. Termination of Agreement. This Agreement shall
automatically terminate upon the closing of the Offering. Prior to
such time, either party shall have the right to terminate this
Agreement immediately.
Except as set forth above, upon termination of this Agreement, for
any reason, the Issuer's obligation to the Company shall cease. with
the exception of the obligation of the Issuer to pay to the Company
the amount of any compensation which is due to the Company (as
provided for in SECTION 4 of the agreement) for sales made prior to
the date of termination. Notwithstanding anything to the contrary
herein contained, SECTION 6 of this Agreement shall survive
termination.
SECTION 8. Independent Contractor. It is understood and agreed that
the Company's relationship with the Issuer is that of an independent
contractor and that nothing herein shall be construed as creating a
relationship of partners, joint venture, or employer and employees,
between the Issuer and the Company or its Affiliates. The Company is
not authorized to make any placement of the Interests to any person
unless and until that person complies with the qualifications
standard contained in the Offering Document, nor is the Company
authorized to deliver an Offering Document or any other information
or documents or make any representations any person concerning the
Offering except as provided in this Agreement. No additional
material, documents, or information may be delivered to any person
unless expressly authorized in writing by the issuer.
SECTION 9. Assignment. This Agreement is intended to be and is for
the sole and exclusive benefit of the parties hereto, and their
respective successors and assigns and controlling persons, officers,
and directors, and for the benefit of no other person or corporation
and, except as provided in SECTION 6 of this Agreement, nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any person or corporation, other than the parties
hereto, their respective successors and assigns any legal or
equitable right, remedy or claim under or in respect of this
Agreement of any provisions herein contained. No investor shall be
construed to be a successor or assignee of any party hereto by reason
of the purchase of Interests.
SECTION 10. Waiver. Except as otherwise specifically provided for
hereunder, no party shall be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by
any of them with respect to the subject matter hereof unless such
waiver is in writing and signed by the party waiving said right.
Except as otherwise specifically provided hereunder, no delay or
omission by any party in exercising any right with respect to the
subject matter hereof shall operate as a waiver of such right or any
such other right. A waiver on any one occasion with respect to the
subject matter hereof shall not be construed as a bar to, or waiver
of, any right or remedy on any future occasion.
SECTION 11. Rights Cumulative. All rights and remedies with respect
to the subject matter hereof, whether evidenced hereby or by any
other agreement, instrument, or paper, will be cumulative, and may be
exercised separately or concurrently.
SECTION 12. Entire Agreement. The parties have not made any
representations, warranties, or covenants not set forth herein with
respect to the subject matter hereof and this Agreement constitutes
the entire Agreement between them with respect to the subject matter.
SECTION 13. Amendments. This Agreement may not be changed, modified,
extended, terminated, Or discharged orally, but only by a written
agreement which is signed by all of the parties.
SECTION 14. Further Instruments. The parties agree to execute any and
all such other and further instruments and documents, and to take any
and all such further actions reasonably required to effectuate this
agreement and the intent and purpose hereof.
SECTION 15, Notices. All notices or other Communications required or
permitted hereunder shall be in writing and shall be mailed by First
Class, Registered or Certified mail, Return Receipt Requested,
postage prepaid as follows:
To the Company: AMERIVET SECURITIES, INC.
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To the Issuer: PLATFORMS WIRELESS INTERNATIONAL CORPORATION
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or in each case to such other address as shall have last been
furnished by like notice. If mailing by Registered or Certified mail
is impossible due to an absence of postal service. notice shall be in
writing and personally delivered, to the aforesaid address, each
notice or communication shall be deemed to have been given as of date
so mailed or delivered, as the case may be.
SECTION 16. Jurisdiction and Venue, This Agreement was negotiated in
Los Angeles, California, and the parties agree that with respect to
any legal or equitable action, suit or other proceeding arising
hereunder, or in any way connected with, this Agreement, the parties
hereto consent to the in persona jurisdiction of the federal and
state courts in Los Angeles County, California, waive any forum non
convenience and any venue objections they might otherwise have, and
agree to accept service of process upon them by Certified Mail,
return receipt requested.
Offering Document and subscription documents relating to the offering
to potential investors, and through the wholesaling of Interest to
other broker-dealers (hereinafter referred to as the "Selling
Group"), The Company agrees to utilize only the Offering Document and
such offering materials which are provided by the Issuer. The Company
acknowledges that from time to time, the Issuer may provide the
Company with certain information not contained in the Offering
Document in connection with the Company's due diligence examination.
The Company agrees that no reference to any such material, which is
not described or contained in the Offering Document, will be
disclosed to any potential Investor Or appear in any analysis report,
or literature prepared by the Company, except with the prior written
consent of the Issuer.
(a) The Company will at all times comply with all applicable
federal, state, local, common laws and all applicable rules,
regulations, and orders of any court, government or agency thereof,
and of the NASD.
(b) The Company will offer Interests only in those states where both
of the following are applicable:
(i) The Company is licensed as a broker-dealer, and
(ii) The Issuer has obtained "Blue Sky" clearance.
(c) The Company will diligently make inquiries of all prospective
Investors to ascertain whether the purchase of the Interests is
suitable for the prospective Investors.
(d) The Company will keep a log of Investors to whom Offering
Documents are furnished and such log will contain the name, address,
and phone number of the Investors.
(e) The Company will not "generally solicit sales" as is prohibited by
Regulation D.
(f) The Company obtain fully completed and duly executed documents
as required by the Offering Document and promptly transmit same to
the Issuer.
(g) This Agreement has been duly and validly authorized, executed
and delivered by mail on behalf of the Company and constitutes the
valid and binding agreement of the Company enforceable in accordance
with its terms subject to any applicable bankruptcy, insolvency,
moratorium, reorganization or other laws affecting the enforceability
of creditor's rights generally from time to time in effect and except
as the indemnification provisions of SECTION 6 hereof may be limited
under the federal securities laws.
(h) The Company has the corporate power and authority to execute,
deliver and perform this Agreement and has taken all action required
by law, its Certificate of Incorporation, its By-Laws, or otherwise
to authorize the execution, delivery and performance of this
Agreement and the execution and performance of this Agreement does
not violate the provisions of NASD Rules of Fair Practice.
SECTION 17. California Law. This Agreement shall be construed and
enforced in accordance with the internal laws of the State of
California, without giving effect to the principle of conflicts of law.
SECTION 18. Successors. Subject to the restrictions which are
contained in SECTION 9 of this Agreement, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
heirs, executors, administrators, personal representatives.
successors and assigns.
SECTION 19. Counterparts. This Agreement may be executed in two or
more counterparts. each of which shall be deemed an original, but all
together shall constitute one and the same Agreement.
SECTION 20. Captions. The descriptive headings in this Agreement are
for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
SECTION 21. Further Dealings. Any dealing by or between the parties
after the date of expiration or prior termination of this Agreement
shall not constitute a renewal of this Agreement or the creation of a
new agreement, but shall nevertheless be controlled by the terms hereof.
IN WITNESS WHEREOF, the parities to this Agreement have set their
hands or caused these to be signed by their authorized officers, of
OCTOBER 20, 2001.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Amerivet Securities, Inc.
Name & Address of Issuer:
PLATFORMS WIRELESS INTERNATIONAL CORPORATION
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President & CFO
