Issuer Appointment of an Investment Bank Designated Advisor for Disclosure

Transcription

1 Issuer Appointment of an Investment Bank Designated Advisor for Disclosure Full Name and Address of the Issuer: (the Issuer ) Address: Full Name and Address of the Investment Bank Designated Advisor for Disclosure: (the Investment Bank DAD ) Address: THIS AGREEMENT by and among Pink Sheets LLC, a Delaware limited liability company with an office located at 304 Hudson Street, 2nd Floor, New York, NY ( Pink Sheets ), the Issuer and the Investment Bank DAD indicated above, dated as of the date executed by Pink Sheets below. W I T N E S S E T H: WHEREAS, the Issuer desires to retain the Investment Bank DAD as the Issuer s Investment Bank Designated Advisor for Disclosure, as such term is defined in the OTCQX Rules, as amended from time to time, in connection with the Issuer s application for listing on PrimeQX or PremierQX, each tiers of OTCQX, a premium tier quotation, trading and disclosure service provided by Pink Sheets, and the Investment Bank DAD desires to act as the Issuer s Investment Bank Designated Advisor for Disclosure in connection with the Issuer s application for listing on an OTCQX tier; and WHEREAS, Pink Sheets is willing to accept the appointment of the Investment Bank DAD by the Issuer and consider the Issuer for listing on an OTCQX tier. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Pink Sheets, the Issuer and the Investment Bank DAD (collectively, the Parties ) hereby agree as follows: 1. The Issuer selects the Investment Bank DAD, and the Investment Bank DAD agrees, to act as the Issuer s Investment Bank Designated Advisor for Disclosure with respect to the Issuer s application for listing on an OTCQX tier, on the terms set forth herein. The Investment Bank DAD accepts this appointment as of the date hereof, and agrees to act as the Investment Bank Designated Advisor for Disclosure to the 1

2 Issuer on an ongoing basis. This Agreement shall continue in effect until terminated according to Paragraph 4 below. 2. The Issuer and the Investment Bank DAD acknowledge and agree that Pink Sheets will identify the Investment Bank DAD as the Investment Bank Designated Advisor for Disclosure to the Issuer on the Pink Sheets News Service, as such term is defined in the OTCQX Rules, as amended from time to time, and that information posted on the Pink Sheets News Service is publicly available to all interested persons on and without the use of a password or other means to restrict access or the payment of any fee to Pink Sheets. 3. The Investment Bank DAD represents to Pink Sheets and the Issuer that it continues to meet the requirements of an Investment Bank Designated Advisor for Disclosure as set forth in the Application to Serve as an Investment Bank Designated Advisor for Disclosure and the OTCQX Rules, each as amended from time to time. 4. The Issuer and the Investment Bank DAD acknowledge that this Agreement does not (i) create any obligation on the Issuer s part to retain the Investment Bank DAD, (ii) create any obligation on the Investment Bank DAD s part to continue to serve as Investment Bank Designated Advisor for Disclosure to the Issuer, (iii) create any obligation on Pink Sheets part to maintain the Issuer s listing on either PrimeQX or PremierQX, or (iv) create any obligation on Pink Sheets part to retain the Investment Bank DAD on its list of approved Investment Bank Designated Advisors for Disclosure for any fixed period of time. This Agreement may be terminated by any of the Parties at any time, for any reason, by providing written notice to each of the other Parties. 5. The Issuer agrees to provide the Investment Bank DAD with complete access to its company information, including confidential and proprietary information, as well as access to its personnel, to enable the Investment Bank DAD to comply completely with its duties as an Investment Bank Designated Advisor for Disclosure. The Issuer agrees to respond to the Investment Bank DAD s requests for information or documents on a timely basis. The Issuer also agrees to inform the Investment Bank DAD of all material information and events relating to the Issuer, on an ongoing basis. 6. Without limiting the generality of the foregoing, the Issuer also agrees to provide the Investment Bank DAD with information regarding any proposed or pending plans to issue securities, whether through an offering of securities or otherwise. 7. The Investment Bank DAD agrees to use its best efforts to advise the Issuer of its compliance obligations and responsibilities under Federal and state securities laws and in connection with the Issuer s listing on an OTCQX tier and ongoing periodic disclosure obligations thereafter; provided, however, that the Investment Bank DAD shall not be required to engage in the practice of law. 8. The Issuer and its management are solely responsible for the content of the information provided by the Issuer to Pink Sheets or published on the Pink Sheets News Service or on the U.S. Securities and Exchange Commission s EDGAR 2

3 system (the Information ); provided, however, that the Investment Bank DAD shall be responsible for any disclosure in the Information relating to any conflict of interest that may affect the advice given by the Investment Bank DAD to the Issuer. 9. The Investment Bank DAD agrees to promptly advise the Issuer if it is censured by Pink Sheets, its status as an Investment Bank DAD is revoked by Pink Sheets or it is removed from the list of approved Designated Advisors for Disclosure by Pink Sheets. 10. The Issuer agrees that the Investment Bank DAD may notify Pink Sheets in the event of the Investment Bank DAD s resignation or termination by the Issuer, and the Issuer hereby waives any claim of privilege that is inconsistent with the provision of such notice. The Investment Bank DAD will provide a written letter to the Issuer, but shall not provide such letter to Pink Sheets, that describes the reasons for any such resignation; provided, however, that the Issuer and the Investment Bank DAD agree that the Issuer, in its sole discretion, may provide such letter to Pink Sheets or any other person. 11. The Issuer agrees to pay the Investment Bank DAD for its services according to a separate fee agreement between the Issuer and the Investment Bank DAD. 12. Neither this Agreement nor any of the rights and obligations of the Issuer or the Investment Bank DAD hereunder may be assigned or transferred to any other person, except upon the written consent of Pink Sheets, Issuer and the Investment Bank DAD, as the case may be. Nothing, express or implied, in this Agreement is intended to confer on any person other than the Investment Bank DAD, the Issuer or Pink Sheets, or their respective permitted successors or assigns, any rights or remedies under or by reason of this Agreement. 13. The Investment Bank DAD agrees that, without the permission of the Issuer, it shall not disclose any confidential proprietary information of the Issuer to any person other than such Issuer s accountants, lawyers or other advisors, nor shall the Investment Bank DAD use any confidential proprietary information of the Issuer for its own personal benefit. The term confidential proprietary information shall mean all information that the Investment Bank DAD obtains from the Issuer including, without limitation, matters such as corporate opportunities, research and development activities, books and records, customer lists, vendor lists and other proprietary information; provided, however, that confidential proprietary information shall not include any information that the Investment Bank DAD shows to be in the public domain other than as a result of disclosure by the Investment Bank DAD in breach of this Agreement. 14. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York, except for its conflicts of laws provisions. 15. In the event any provision of this Agreement shall be held to be void, unlawful or unenforceable, all of the remaining provisions shall nevertheless remain in full force and effect. 3

4 16. All notices, requests or other communications required or permitted to be given between the parties shall be in writing and shall be delivered personally, by an overnight courier service or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the addresses set forth on the first page of this Agreement. 17. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. 4

5 IN WITNESS WHEREOF, the Parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date set forth below. ISSUER By (signature): Name (print): Title: Date: INVESTMENT BANK DESIGNATED ADVISOR FOR DISCLOSURE By (signature): Name (print): Title: Date: PINK SHEETS LLC By: Name: R. Cromwell Coulson Title: Chief Executive Officer Date Executed by Pink Sheets: A signed copy will be sent to the Issuer and the Investment Bank DAD for their records. 5