exv4w11



 






Exhibit 4.11




PLACEMENT AGENCY AGREEMENT




     THIS AGREEMENT (“Agreement”
) is made as of the 20th day of April 2005, by and between US
Dataworks, Inc., a Nevada corporation (the “Company”), and JPC Capital Partners, Inc., a Delaware
corporation (the “Agent”).



WITNESSETH:




     WHEREAS, the Company desires to consider strategic alternatives available to it which include,
but are not limited to, issuing and selling equity and/or debt of the Company in the amount of up
to and including $7,500,000.00; and



     WHEREAS, the Agent has offered to assist the Company in the procurement, if necessary, of
potential purchasers of the Company’s equity and/or debt, and the Company desires to secure the
services of the Agent on the terms and conditions hereinafter set forth.



AGREEMENT




     NOW, THEREFORE, in consideration of the premises and the mutual promises, conditions and
covenants herein contained, the parties hereto do hereby agree as follows:



     1. Engagement of Agent. The Company hereby appoints the Agent as non-exclusive Agent
to procure potential purchasers of the Company’s equity and/or debt (the “Agent Services”). The
Agent, on the basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, accepts such appointment. This appointment shall be
irrevocable for the period commencing as of the date hereof and ending upon the termination of the
Agreement in accordance with Section 7 hereof (the “Term”).



     2. Representations and Warranties of the Company. In order to induce the Agent to
enter into this Agreement, the Company hereby represents and warrants to and agrees with the Agent
as follows:



     (a) Accuracy of Information. All information provided by the Company to the Agent
regarding the Company is true and does not omit any material fact necessary to make such
information, in light of the circumstances under which it was delivered, not misleading. If during
the Term, any event occurs or any event known to the Company relating to or affecting the Company
and/or the Agent shall occur as a result of which the information provided to the Agent becomes
incorrect or misleading, the Company shall inform the Agent of such occurrence within a reasonable
period of time.



     (b) No Defaults. The execution and delivery of this Agreement, and the consummation
of the transactions herein contemplated, and compliance with the terms of this Agreement will not
conflict with or result in a material breach of any of the terms, conditions or provisions of, or
constitute a default under, the Articles of Incorporation or By-Laws of the Company (in any respect
that is material to the Company), any material note, indenture, mortgage, deed of trust, or other
agreement or instrument to which the Company is a party or by
which the Company or any property of the Company is bound, or to the Company’s knowledge, any
existing law, order, rule, regulation, writ, injunction or decree of any government,



 









 





governmental
instrumentality, agency or body, arbitration tribunal or court, domestic or foreign, having
jurisdiction over the Company or any property of the Company.




     (c) Incorporation and Authorization. The Company is duly formed and validly existing
in good standing as a corporation under the laws of the State of its incorporation. The execution
and delivery by the Company of this Agreement have been duly authorized by all necessary action,
and this Agreement is the valid, binding and legally enforceable obligation of the Company.



     3. Representations and Warranties of the Agent. In order to induce the Company to
enter into this Agreement, the Agent hereby represents and warrants to and agrees with the Company
as follows:



     (a) No Defaults. The execution and delivery of this Agreement, and the consummation
by the Agent of the transactions herein contemplated, and the compliance by the Agent with the
terms of this Agreement will not conflict with or result in a breach of any of the terms,
conditions or provisions of, or constitute a default under, the Articles of Incorporation or
By-Laws of the Agent (in any respect that is material to the Agent), any material note, indenture,
mortgage, deed of trust, or other agreement or instrument to which the Agent is a party or by which
the Agent or any property of the Agent is bound, or to the Agent’s knowledge, any existing law,
order, rule, regulation, writ, injunction or decree of any government, governmental
instrumentality, agency or body, arbitration tribunal or court, domestic or foreign, having
jurisdiction over the Agent or any property of the Agent.



     (b) Incorporation and Authorization. The Agent is duly formed and validly existing in
good standing as a corporation under the laws of the State of its incorporation. The execution and
delivery by the Agent of this Agreement have been duly authorized by all necessary action, and this
Agreement is the valid, binding and legally enforceable obligation of the Agent.



     (c) Registered Broker Dealer. The Agent is duly registered and qualified as a broker
dealer in such jurisdictions and with such regulatory bodies as is necessary in order to legally
carry out the Agent Services.



     4. Placement Fee. The Company shall pay the Agent a fee of seven percent (7%) of the
gross subscription proceeds of an equity and/or debt offering by the Company from purchasers
procured by the Agent; provided the subscriptions are accepted by the Company. The Company shall
also issue, within ten days of the closing of each financing completed as a direct result of the
Agent Services under this Agreement, to the Agent three-year non-callable warrants to purchase a
number of the Company’s shares of common stock equal to six shares of the Company’s common stock
for every one hundred shares effectively sold by the Agent in conjunction with such offering at a
strike price and with registration rights equal to the strike price and registration rights of the
warrants issued to purchasers procured by the Agent. Furthermore, the Agent shall be entitled to a
fee of three percent (3%) of all monies received from the exercise of warrants by such purchasers.



     5. Non-Circumvention. The Company hereby agrees as follows:



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     (a) The Company agrees to maintain the confidentiality of the Agent’s clients, except as
required by applicable law. Such clients shall be those entities or individuals that the Agent has
procured for investment in the Company (the “Clients”), regardless of whether or not the Company
accepts a subscription from such entity or individual. For a period of eighteen months from the
termination of this Agreement, the Company will not solicit or enter into any transaction covered
by this Agreement with the Clients without the written consent of the Agent and payment to the
Agent compensation no less than the compensation to be paid to the Agent hereunder.



     (b) In the event that the Company breaches Section 5(a) of this Agreement, the Agent shall be
entitled to receive compensation in the same proportion to the transaction done without the Agent’s
participation as the compensation to the Agent under this Agreement bears to the transaction.



     6. Indemnification.



     (a) The Company agrees to indemnify and hold harmless the Agent and the Agent’s employees,
accountants, attorneys and agents (the “Agent’s Indemnitees”) against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under any
statute or at common law for any legal or other expenses (including the costs of any investigation
and preparation) incurred by them in connection with any litigation, whether or not resulting in
any liability, but only insofar as such losses, claims, damages, liabilities and litigation arise
out of or are based upon a breach of this Agreement; provided, however, that the
indemnity agreement contained in this Section 6(a) shall not apply to amount paid in settlement of
any such litigation, if such settlements are made without the consent of the Company, nor shall it
apply to the Agent’s Indemnitees in respect to any such losses, claims, damages or liabilities
arising out of or based upon any breach on their part of this Agreement. This indemnity is in
addition to any other liability the Company may otherwise have to the Agent’s Indemnitees.



     (b) The Agent agrees, in the same manner and to the same extent as set forth in Section 6(a)
above, to indemnify and hold harmless the Company and the Company’s employees, accountants,
attorneys and agents (the “Company’s Indemnitees”) with respect to any breach of any
representation, warranty or covenant made by the Agent in this Agreement.



     7. Termination.



     (a) Either party may terminate this Agreement upon thirty (30) days’ prior written notice.



     (b) Any termination of this Agreement pursuant to this Section shall be without liability of
any character (including, but not limited to, loss of anticipated profits or consequential damages)
on the part of any party thereto, except that the Company shall remain
obligated to pay the costs and expenses provided to be paid by it specified in Sections 4 and 5 and
that have been earned by the Agent up to the date of such termination; and the Company and



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the
Agent shall be obligated to pay, respectively, all losses, claims, damages or liabilities, joint or
several, under Section 6 hereof.




     8. Miscellaneous.



     (a) Notice. Whenever notice is required by the provisions of this Agreement to be
given to the Company, such notice shall be in writing, addressed to the Company, at:



	 	 	 	 	 	 	 
	 	 	If to Company:	 	US Dataworks, Inc.
	 	 	 	 	5301 Hollister Road, Suite 250
	 	 	 	 	Houston, TX 77040
	 

	 	 	 	Attn:
	 John Reiland
	 

	 	 	 	Fax:
	 713-690-1426






Whenever notice is required by the provisions of this Agreement to be given to the Agent, such
notice shall be given in writing, addressed to the Agent, at:




	 	 	 	 	 	 	 
	 	 	If to the Agent:	 	JPC Capital Partners, Inc.
	 	 	 	 	555 North Point Center East
	 	 	 	 	4th Floor
	 	 	 	 	Alpharetta, GA 30022
	 

	 	 	 	Attn:
	 John Canouse
	 

	 	 	 	Fax:
	 (678) 366-4424






     (b) Governing Law. The validity, interpretation, and construction of this Agreement
will be governed by the Laws of the State of Delaware.



     (c) Counterparts. This Agreement may be executed in any number of counterparts, each
of which may be deemed an original and all of which together will constitute one and the same
instrument.



     (d) Confidential Information. All confidential financial or business information
(except publicly available or freely usable material otherwise obtained from another source)
respecting either party will be used solely by the other party in connection with the within
transactions, be revealed only to employees or contractors of such other party who are necessary to
the conduct of such transactions, and be otherwise held in strict confidence.



[signature page follows]




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     IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be executed as of
the day and year first above written.



	 	 	 	 	 	 	 
	 	 	COMPANY	 	 
	 
	 	 	 	 	 	 
	 	 	US Dataworks, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Reiland	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John Reiland	 	 
	 

	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 
	 	 	AGENT	 	 
	 
	 	 	 	 	 	 
	 	 	JPC Capital Partners, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John C. Canouse	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	John C. Canouse	 	 
	 

	 	Title:
	 	CEO	 	 







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