Attached files
| file | filename |
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| S-1/A - Premier Power Renewable Energy, Inc. | v189896_s1a.htm |
| EX-23.4 - Premier Power Renewable Energy, Inc. | v189896_ex23-4.htm |
| EX-23.1 - Premier Power Renewable Energy, Inc. | v189896_ex23-1.htm |
| EX-23.3 - Premier Power Renewable Energy, Inc. | v189896_ex23-3.htm |
| EX-10.48 - Premier Power Renewable Energy, Inc. | v189896_ex10-48.htm |
| EX-10.47 - Premier Power Renewable Energy, Inc. | v189896_ex10-47.htm |
| EX-10.46 - Premier Power Renewable Energy, Inc. | v189896_ex10-46.htm |
| EX-10.49 - Premier Power Renewable Energy, Inc. | v189896_ex10-49.htm |
June 28,
2010
PERSONAL &
CONFIDENTIAL
Mr. Frank
Sansone
Chief
Financial Officer
Premier
Power Renewable Energy, Inc.
4961
Windplay Drive, Suite 100
El Dorado
Hills, CA 95762
Dear Mr.
Sansone:
Merriman
Curhan Ford & Co. ("Merriman") is pleased to act as exclusive placement
agent to Premier Power Renewable Energy, Inc. (the “Company”) with respect to
the Company’s efforts to obtain financing through a registered direct offering
of up to $10 million of common equity securities (the “Capital Raising
Transaction”).
1. Services. In
connection with this engagement, Merriman will perform the following
services:
a. Capital Raising
Services. Merriman will assist the Company in its capital
raising efforts. Merriman will introduce the Company to potential
investors who may have an interest in financing the Company and will advise the
Company with respect to the proposed structure, terms and conditions of the
financing. Merriman will help the Company prepare for investor
meetings, management presentations, responses to requests for data and other
activities. Merriman will assist the Company in managing the process
of negotiating and closing the financing. This includes reviewing all proposals
from potential financing sources, analyzing the terms of such proposals and
participating in presentations to the Company’s Board of Directors regarding any
proposals, as well as reviewing of the transaction documentation and other
closing activities. The Company is free, at its sole discretion, to
accept or reject the terms of any proposed financing.
2. Information Provided to
Merriman. In connection with our engagement, the Company has
agreed to furnish to Merriman, on a timely basis, all relevant information
needed by Merriman to perform its services under the terms of this
agreement. During our engagement, it may be necessary for
us: to interview the management of, the auditors for, and the
consultants and advisors to, the Company; to rely (without independent
verification) upon data furnished to us by them; and to review any financial and
other reports relating to the business and financial condition of the Company as
we may determine to be relevant under the circumstances. To this end,
the Company will make available to us such information as we may request,
including information with respect to the assets, liabilities, earnings, earning
power, financial condition, historical performance, future prospects and
financial projections and the assumptions used in the development of such
projections of the Company. We agree that all nonpublic information
obtained by us in connection with our engagement will be held by us in strict
confidence and will be used by us solely for the purpose of performing our
obligations relating to our engagement.
Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
2
We do not
assume any responsibility for, or with respect to, the accuracy, completeness or
fairness of the information and data supplied to us by the Company or its
representatives. In addition, the Company acknowledges that we will
assume, without independent verification, all information supplied to us with
respect to the Company to be true, correct and complete in all material respects
and not contain any untrue statements of material fact or omit to state a
material fact necessary to make the information supplied to us not misleading.
If at any time during the course of our engagement the Company becomes aware of
any material change in any of the information previously furnished to us, it
will promptly advise us of the change.
3. Company
Representations. The Company will:
(i) Use
its best efforts to cause the Company’s independent public accountants to
address and deliver to the Company and the placement agent a letter or letters
(which letters are frequently referred to as “Comfort Letters”) dated as of the
date of the Closing; and
(ii) Use
its best efforts to cause the Company’s counsel to address and deliver to the
Company and the placement agent a letter dated as of the date of the Closing and
as of the effective date of the Registration Statement containing statements
customary for similar transactions and addressing such additional matters as
Merriman shall reasonably request. In addition, Merriman shall be
entitled to rely on any opinion delivered to the purchasers by counsel to the
Company in connection with this transaction.
4. Scope of
Engagement. The Company acknowledges that we will not make, or
arrange for others to make, an appraisal of any physical assets of the
Company. Nonetheless, if we determine after review of the information
furnished to us that any such appraisal or appraisals are necessary or
desirable, we will so advise the Company and, if approved by the Company in
writing, the costs incurred in connection with such appraisal(s) will be borne
by the Company.
Merriman
has been engaged by the Company only in connection with the matters described in
this letter agreement and for no other purpose. We have not made, and
will assume no responsibility to make any representation in connection with our
engagement as to any legal matter. Except as specifically provided in
this letter agreement, Merriman shall not be required to render any advice or
reports in writing or to perform any other services. During the
engagement period, the Company and its management, directors and investors will
notify Merriman if they directly solicit potential investors.
5. Term of
Engagement. Our representation will continue until August 27,
2010; however, either party may terminate the relationship at any time upon
fifteen (15) days written notice to the other party. Notwithstanding the
foregoing, in the event of termination by the Company or expiration of this
agreement, Merriman’s reasonable out-of-pocket expenses, as well as all legal
expenses incurred by Merriman for services provided by outside counsel relating
to the Capital Raising Transaction, up to $110,000 will be payable by Company in
full.
6. Fees and
Expenses. As compensation for our professional services, the
Company agrees to reimburse Merriman for reasonable out-of-pocket expenses and
all legal expenses incurred by Merriman for services provided by outside counsel
relating to the Capital Raising Transaction, up to $110,000, whether or not a
Capital Raising Transaction occurs.
Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
3
Performance-based
compensation for our services will be as follows:
a. Capital
Raising.
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(i)
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Financing Completion
Fee. During the term of this agreement, at the time the
Capital Raising Transaction closes, Merriman will be paid a cash fee (the
“Financing Completion Fee”) equal to 6.5% of the total amount of capital
received by the Company from the sale of its securities to investors who
participated in the Capital Raising Transaction. In no event
shall the Financing Completion Fee and the expense reimbursement received
by the Placement Agent exceed an aggregate of 8% of the gross proceeds of
the Capital Raising Transaction.
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7. Indemnity and
Contribution. The parties agree to the terms of Merriman’s
standard indemnification agreement, which is attached hereto as Appendix A and
incorporated herein by reference. The provisions of this paragraph shall survive
any termination of this agreement.
8. Other
Business. The Company understands that if Merriman is asked to
act for the Company in any other formal additional capacity relating to this
engagement but not specifically addressed in this letter, such as acting as an
underwriter in connection with the issuance of securities by the Company, then
such activities shall constitute separate engagements and the terms and
conditions of any such additional engagements will be embodied in one or more
separate written agreements, containing provisions and terms to be mutually
agreed upon, including without limitation appropriate indemnification
provisions. The indemnity provisions in Appendix A shall apply to any
such additional engagements, unless superseded by an indemnity provision set
forth in a separate agreement applicable to any such additional engagements, and
shall remain in full force and effect regardless of any completion, modification
or termination of Merriman’s engagement(s).
9. Other Merriman
Activities. Merriman is a full service securities firm engaged
in securities trading and brokerage activities as well as investment banking and
financial advisory services. In the ordinary course of our trading
and brokerage activities, Merriman or its affiliates may hold positions, for its
own account or the accounts of customers, in equity, debt or other securities of
the Company. The Company also acknowledges that Merriman and its
affiliates are in the business of providing financial services and consulting
advice to others. Nothing herein contained shall be construed to limit or
restrict Merriman in conducting such business with respect to others, or in
rendering such advice to others, except as such advice may relate to matters
relating to the Company’s business and properties and that might compromise
confidential information delivered by the Company to Merriman.
10. Compliance with Applicable
Law. In connection with this engagement, the Company and
Merriman will comply with all applicable federal, state and foreign securities
laws and other applicable laws and regulations.
Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
4
11. Independent
Contractor. Merriman is and at all times during the term
hereof will remain an independent contractor, and nothing contained in this
letter agreement will create the relationship of employer and employee or
principal and agent as between the Company and Merriman or any of its
employees. Without limiting the generality of the foregoing, all
final decisions with respect to matters about which Merriman has provided
services hereunder shall be solely those of the Company, and Merriman shall have
no liability relating thereto or arising therefrom. Merriman shall
have no authority to bind or act for the Company in any respect. It is
understood that Merriman’s responsibility to the Company is solely contractual
in nature and that Merriman does not owe the Company, or any other party, any
fiduciary duty as a result of its engagement.
12. Successors and
Assigns. This letter agreement and all obligations and
benefits of the parties hereto shall bind and shall inure to their benefit and
that of their respective successors and assigns. The indemnity and
contribution provisions incorporated into this letter agreement are for the
express benefit of the officers, directors, employees, consultants, agents and
controlling persons of Merriman and their respective successors, assigns and
parent companies.
13. Announcements. The
Company grants to Merriman the right to place customary announcement(s) of this
engagement in certain newspapers and to mail announcement(s) to persons and
firms selected by Merriman, the whole subject to the Company’s prior approval
and all costs of such announcement(s) will be borne by Merriman.
14. Governing Law and
Arbitration. This agreement shall be governed by and construed
under the laws of the State of California applicable to contracts made and to be
performed entirely within the State of California. Any dispute, claim
or controversy arising out of or relating to this agreement or the breach,
termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to arbitrate,
shall be determined by binding arbitration in the City and County of Sacramento,
before one arbitrator. The arbitration shall be administered by JAMS
and in English. Judgment on the award may be entered in any court
having jurisdiction. This clause shall not preclude parties from seeking
provisional remedies in aid of arbitration from a court of appropriate
jurisdiction. Each party will bear its own costs for
arbitration. The prevailing party in arbitration shall be entitled to
reasonable attorneys’ fees. The provisions of this paragraph
shall survive any termination of this agreement.
15. Effect on Prior Agreements;
Entire Agreement. This letter agreement amends and supercedes,
in all respects, each of the letter agreements between the parties dated on
April 27, 2010 and June 23, 2010 regarding the subject matter hereof (the “Prior
Agreements”), which Prior Agreements shall be of no further force and
effect. Except as set forth above, this letter agreement constitutes
and embodies the entire understanding and agreement of the parties hereto
relating to the subject matter hereof, and there are no other agreements or
understandings, written or oral, in effect between the parties relating to the
subject matter hereof.
16. General
Provisions. No purported waiver or modification of any of the
terms of this letter agreement will be valid unless made in writing and signed
by the parties hereto. Section headings used in this letter agreement
are for convenience only, are not a part of this letter agreement and will not
be used in construing any of the terms hereof. No representation,
promise, inducement or statement of intention has been made by either of the
parties hereto which is to be embodied in this letter agreement, and none of the
parties hereto shall be bound by or liable for any alleged representation,
promise, inducement or statement of intention, not so set forth
herein. No provision of this letter agreement shall be construed in
favor of or against either of the parties hereto by reason of the extent to
which either of the parties or its counsel participated in the drafting
hereof. If any provision of this letter agreement is held by a court
of competent jurisdiction to be invalid, illegal or unenforceable, the remaining
provisions hereof shall in no way be affected and shall remain in full force and
effect. This letter agreement may be executed in any number of
counterparts and by facsimile signature.
Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
5
If the
foregoing correctly sets forth your understanding of our agreement, please sign
the enclosed copy of this letter and return it to Merriman.
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Very
truly yours,
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MERRIMAN
CURHAN FORD & CO.
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By:
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/s/ Michael E. Marrus
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Michael
E. Marrus
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Managing
Director
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The
undersigned hereby accepts, agrees to and becomes party to the foregoing letter
agreement, effective as of the date first written above.
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PREMIER
POWER RENEWABLE ENERGY, INC.
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By:
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/s/ Frank Sansone
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Frank
Sansone
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Chief
Financial Officer
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Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
6
APPENDIX A—INDEMNIFICATION
AGREEMENT
The
Company agrees to indemnify and hold harmless Merriman and its officers,
directors, employees, consultants, attorneys, agents, affiliates, parent company
and controlling persons (within the meaning of Section 15 of the Securities Act
of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended) (Merriman and each such other persons are collectively and individually
referred to below as an "Indemnified Party") from and against any and all loss,
claim, damage, liability and expense whatsoever, as incurred, including, without
limitation, reasonable costs of any investigation, legal and other fees and
expenses incurred in connection with, and any amounts paid in settlement of, any
action, suit or proceeding or any claim asserted, to which the Indemnified Party
may become subject under any applicable federal or state law (whether in tort,
contract or on any other basis) or otherwise, (i) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any private placement memorandum, registration statement (including documents,
incorporated by reference) (the “Registration Statement”) or in any other
written or oral communication provided by or on behalf of the Company to any
actual or prospective purchaser of the securities or arising out of or based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or (ii)
related to the performance by the Indemnified Party of the services contemplated
by this letter agreement (including, without limitation, the offer and sale of
the securities) and will reimburse the Indemnified Party for all expenses
(including legal fees and expenses) in connection with the investigation of,
preparation for or defense of any pending or threatened claim or any action or
proceeding arising therefrom, whether or not the Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
the Company. The Company will not be liable under clause (ii) of the
foregoing indemnification provision to the extent that any loss, claim, damage,
liability or expense is found in a final judgment by a court or arbitrator, not
subject to appeal or further appeal, to have resulted directly from the
Indemnified Party's willful misconduct or gross negligence. The
Company also agrees that the Indemnified Party shall have no liability (whether
direct or indirect, in contract, tort or otherwise) to the Company related to,
or arising out of, the engagement of the Indemnified Party pursuant to, or the
performance by the Indemnified Party of the services contemplated by, this
letter agreement except to the extent that any loss, claim, damage, liability or
expense is found in a final judgment by a court or arbitrator, not subject to
appeal or further appeal, to have resulted directly from the Indemnified Party's
willful misconduct or gross negligence.
If the
indemnity provided above shall be unenforceable or unavailable for any reason
whatsoever, the Company, its successors and assigns, and the Indemnified Party
shall contribute to all such losses, claims, damages, liabilities and expenses
(including, without limitation, all costs of any investigation, legal or other
fees and expenses incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted) (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Merriman under the terms of this letter agreement or (ii) if the
allocation provided for by clause (i) of this sentence is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i), but also the relative fault of the
Company and Merriman in connection with the matter(s) as to which contribution
is to be made. The relative benefits received by the Company and
Merriman shall be deemed to be in the same proportion as the fee the Company
actually pays to Merriman bears to the total value of the consideration paid or
to be paid to the Company and/or the Company's shareholders in the
transaction(s) contemplated by this letter agreement. The relative
fault of the Company and Merriman shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement of material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by Merriman and the Company’s and Merriman’s relative
intent, knowledge, access to information and opportunity to
correct. The Company and Merriman agree that it would not be just or
equitable if contribution pursuant to this paragraph were determined by pro rata
allocation or by any other method of allocation which does not take into account
these equitable considerations. Notwithstanding the foregoing, to the extent
permitted by law, in no event shall the Indemnified Party's share of such
losses, claims, damages, liabilities and expenses exceed, in the aggregate, the
fee actually paid to the Indemnified Party by the Company. The
Company further agrees that, without Merriman’s prior written consent, which
consent will not be unreasonably withheld, it will not enter into any settlement
of a lawsuit, claim or other proceeding arising out of the transactions
contemplated by this agreement unless such settlement includes an explicit and
unconditional release from the party bringing such lawsuit, claim or other
proceeding of all such lawsuits, claims, or other proceedings against the
Indemnified Parties.
Premier
Power Renewable Energy, Inc.
June
28, 2010
Page
7
The
Indemnified Party will give prompt written notice to the Company of any claim
for which it seeks indemnification hereunder, but the omission to so notify the
Company will not relieve the Company from any liability which it may otherwise
have hereunder except to the extent that the Company is damaged or prejudiced by
such omission or from any liability it may have other than under this Appendix
A. The Company shall have the right to assume the defense of any
claim, lawsuit or action (collectively an "action") for which the Indemnified
Party seeks indemnification hereunder, subject to the provisions stated herein
with counsel reasonably satisfactory to the Indemnified Party. After
notice from the Company to the Indemnified Party of its election to assume the
defense thereof, and so long as the Company performs its obligations pursuant to
such election, the Company will not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. The Indemnified Party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof at
its own expense; provided, however, that the reasonable fees and expenses of
such counsel shall be at the expense of the Company if (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the
Company has failed after a reasonable period of time to assume such defense and
to employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnified Party and the Company and the
Indemnified Party shall have reasonably concluded, based on advice of counsel,
that there may be legal defenses available to the Indemnified Party which are
different from, or in conflict with, any legal defenses which may be available
to the Company (in which event the Company shall not have the right to assume
the defense of such action on behalf of the Indemnified Party, it being
understood, however, that the Company shall not be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for all
Indemnified Parties in each jurisdiction in which counsel is
needed). Despite the foregoing, the Indemnified Party shall not
settle any claim without the prior written approval of the Company, which
approval shall not be unreasonably withheld, so long as the Company is not in
material breach of this Appendix A. Also, each Indemnified Party
shall make reasonable efforts to mitigate its losses and
liabilities. In addition to the Company's other obligations hereunder
and without limitation, the Company agrees to pay monthly, upon receipt of
itemized statements therefore, all reasonable fees and expenses of counsel
incurred by an Indemnified Party in defending any claim of the type set forth in
the preceding paragraphs or in producing documents, assisting in answering any
interrogatories, giving any deposition testimony or otherwise becoming involved
in any action or response to any claim relating to the engagement referred to
herein, or any of the matters enumerated in the preceding paragraphs, whether or
not any claim is made against an Indemnified Party or an Indemnified Party is
named as a party to any such action.