China Information Technology, Inc.: Exhibit 10.2 - Filed by newsfilecorp.com






 

May 7, 2015 

Mr. Jianghuai Lin 
Chairman & Chief Executive Officer

China Information Technology, Inc. 
21st Floor, Everbright
Bank Building 
Zhuzilin, Futian District 
Shenzhen, Guangdong, China,
518040 

Re:     Exclusive Placement Agent Agreement


Dear Mr. Lin: 

The purpose of this letter
agreement (this “Engagement Letter” or this “Agreement”) is to set
forth the terms and conditions pursuant to which FT Global Capital, Inc.
(“FTGC” or the “Placement Agent”), shall serve as the Exclusive
Placement Agent for China Information Technology, Inc. (the “Company”),
on a “best efforts” basis, in connection with the proposed placement (each, a
“Placement”) of registered securities (the “Securities”) of the
Company, which may include the Company’s ordinary shares (the “Ordinary
Shares”).

This Agreement shall become
effective upon the date it is signed by the Company (the “Effective
Date”). The terms of such Placement(s) and the Securities shall be mutually
agreed upon by the Company and the investors (each, an “Investor” and
collectively, the “Investors”) and nothing herein enables the Placement
Agent to bind the Company or any Investor or creates an obligation for the
Company to issue any Securities or complete any Placement. This Agreement and
the documents executed and delivered by the Company and the Investors in
connection with the Placement(s) shall be collectively referred to herein as the
“Transaction Documents.” The date of each of the closings of the
Placement(s) shall be referred to herein as the “Closing Date.” The
Company expressly acknowledges and agrees that the Placement Agent’s obligations
hereunder are on a reasonable “best efforts” basis only and that the execution
of this Agreement does not constitute a commitment by the Placement Agent to
purchase or to sell any Securities and does not ensure the successful placement
of any Securities or any portion thereof. The identities of the investors to
which the Placement Agent introduces the Company shall be proprietary
information of the Placement Agent and shall not be divulged to third parties by
the Company, nor used by the Company outside the scope of the Placement Agent’s
engagement as described herein, other than as required by applicable law.

SECTION 1.   COMPENSATION AND OTHER FEES. 

(A)                  As compensation for the
Placement Agent’s services hereunder, the Company shall pay to the Placement
Agent a cash placement fee upon each Closing, in an amount equal to five percent
(5%) of the aggregate gross proceeds raised in the Placement from the sale of
its Securities to Investors introduced to the Company by the Placement Agent
during the term of this Agreement (the “Placement Agent Fee”).
Notwithstanding anything to the contrary in this Agreement, the compensation
provided for in this Agreement shall be subject to such reduction as may be
necessary for the compensation to comply with Financial Industry Regulatory
Authority (“FINRA”) Rule 5110. 

1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328

770-350-2698 (Office), 770-551-8184 (Fax)




(B)                  The Placement Agent shall be entitled to a Placement Agent
Fee, calculated in the manner provided in Section 1(A), with respect to any
public or private offering or other financing or capital-raising transaction of
any kind (“Tail Financing”) to the extent that such financing or capital
is provided to the Company by investors whom the Placement Agent had introduced
to the Company in writing during the Term if such Tail Financing is consummated
at any time within the 18-month period following the termination of this
Agreement (the “Tail Period”). Notwithstanding anything to the contrary
in this Agreement, the compensation provided for in this Agreement shall be
subject to such reduction as may be necessary for the compensation to comply
with FINRA Rule 5110.

SECTION 2.   COMPANY REPRESENTATIONS AND
WARRANTIES. The Company represents and warrants to, and agrees with, the
Placement Agent on the date hereof and on each date on which any Securities are
offered that: 

(A)                  The Company has filed with the Securities and Exchange
  Commission (the “Commission”) a registration statement on Form F-3
  (Registration File No. 333-196755) under the Securities Act of 1933, as amended
  (the “Securities Act”), which became effective on June 26, 2014, to be
  used for the registration under the Securities Act of any Securities offered at
  any time pursuant to this Agreement to the extent such Placement is being made
  pursuant to such registration statement, as opposed to privately placed. At the
  time of such filing and on the date hereof, the Company met the requirements of
  Form F-3 under the Securities Act. Such registration statement meets the
  requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
  complies with said Rule. The Company will file with the Commission pursuant to
  Rule 424(b) under the Securities Act, and the rules and regulations (the
  “Rules and Regulations”) of the Commission promulgated thereunder, a
  supplement to the form of prospectus included in such registration statement
  relating to the placement of any publicly offered Securities and the plan of
  distribution thereof and has advised or will advise the Placement Agent of all
  further information (financial and other) with respect to the Company required
  to be set forth therein. Such registration statement, including the exhibits
  thereto, as amended at the date of this Agreement, is hereinafter called the
  “Registration Statement”; such prospectus in the form in which it appears
  in the Registration Statement is hereinafter called the “Base
    Prospectus”; and the supplemented form of prospectus, in the form in which
  it will be filed with the Commission pursuant to Rule 424(b) (including the Base
  Prospectus as so supplemented) is hereinafter called the “Prospectus
    Supplement.” Any reference in this Agreement to the Registration Statement,
  the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and
  include the documents incorporated by reference therein (the “Incorporated
    Documents”) pursuant to Item 6 of Form F-3 which were filed under the
  Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
  before the date of this Agreement, or the issue date of the Base Prospectus or
  the Prospectus Supplement, as the case may be; and any reference in this
  Agreement to the terms “amend,” “amendment” or “supplement” with respect to the
  Registration Statement, the Base Prospectus or the Prospectus Supplement shall
  be deemed to refer to and include the filing of any document under the Exchange
  Act after the date of this Agreement, or the issue date of the Base Prospectus
  or the Prospectus Supplement, as the case may be, deemed to be incorporated
  therein by reference. All references in this Agreement to financial statements
  and schedules and other information that is “contained,” “included,”
  “described,” “referenced,” “set forth” or “stated” in the Registration
  Statement, the Base Prospectus or the Prospectus Supplement (and all other
  references of like import) shall be deemed to mean and include all such
  financial statements and schedules and other information that is or is deemed to
  be incorporated by reference in the Registration Statement, the Base Prospectus
  or the Prospectus Supplement, as the case may be. No stop order suspending the
  effectiveness of the Registration Statement or the use of the Base Prospectus or
  the Prospectus Supplement has been issued, and no proceeding for any such
  purpose is pending or has been initiated or, to the Company's knowledge, is
  threatened by the Commission. For purposes of this Agreement, “free writing
    prospectus” has the meaning set forth in Rule 405 under the Securities Act
  and the “Time of Sale Prospectus” means the preliminary prospectus, if
  any, together with the free writing prospectuses, if any, used in connection
  with the Placement, including any documents incorporated by reference therein.





(B)                  The Registration Statement (and any further documents to be
filed with the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective, complied in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations and did not and, as amended or supplemented, if applicable, will
not, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Base Prospectus, the Time of Sale Prospectus, if any, and
the Prospectus Supplement, each as of its respective date, comply in all
material respects with the Securities Act and the Exchange Act and the
applicable Rules and Regulations. Each of the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, as amended or supplemented,
did not and will not contain as of the date thereof any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein (with respect to Incorporated Documents incorporated
by reference in the Base Prospectus or Prospectus Supplement), in light of the
circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, the
Time of Sale Prospectus, if any, or Prospectus Supplement, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations, as
applicable, and will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. No post-effective
amendment to the Registration Statement reflecting any facts or events arising
after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed
with the Commission. There are no documents required to be filed with the
Commission in connection with the transaction contemplated hereby that (i) have
not been filed as required pursuant to the Securities Act or (ii) will not be
filed within the requisite time period. There are no contracts or other
documents required to be described in the Base Prospectus, the Time of Sale
Prospectus, if any, or Prospectus Supplement, or to be filed as exhibits or
schedules to the Registration Statement, that have not been described or filed
as required. 




(C)                  The Company is currently eligible to use free writing
prospectuses in connection with the Placement pursuant to Rules 164 and 433
under the Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or
will be, filed with the Commission in accordance with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or behalf of or used by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. The Company will not,
without the prior consent of the Placement Agent, prepare, use or refer to, any
free writing prospectus. 

(D)                  The Company will as promptly
as practicable deliver to the Placement Agent complete conformed copies of the
Registration Statement and of each consent and certificate of experts, as
applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus, the Time of Sale Prospectus,
if any, and the Prospectus Supplement, as amended or supplemented, in such
quantities and at such places as the Placement Agent reasonably request. Neither
the Company nor any of its directors and officers has distributed and none of
them will distribute, prior to the Closing Date, any offering material in
connection with the offering and sale of the Securities other than, in the case
of any Securities offered pursuant to the Registration Statement, the Base
Prospectus, the Time of Sale Prospectus, if any, the Prospectus Supplement, the
Registration Statement, copies of the documents incorporated by reference
therein and any other materials permitted by the Securities Act. 

(E)                  There are no affiliations
with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the
Company. The Company agrees to immediately notify the Placement Agent if this
representation ceases to be correct at any time during the Term. 

(F)                  The Placement Agent shall
have received on each Closing Date a written opinion of counsel for the Company,
dated the Closing Date and addressed to the Placement Agent in form and
substance satisfactory to the Placement Agent, which shall include, without
limitation, opinions related to (i) the corporate existence of the Company and
power to operate its business; (ii) the corporate power and authority of the
Company to execute all agreements and perform its obligations related in the
Placement; (iii) the ability of the Company to enter into all agreements and
perform its obligations related to the Placement without contravening or
violating (or causing the triggering of any anti-dilution or similar provisions
in) its charter documents, any other agreements or any applicable law,
regulation or rule; (iv) that any Securities will be duly authorized, fully
paid, validly issued and non-assessable, as applicable; (v) that no approval,
consent, order, filing or notice is required to complete the Placement and for
the Company to perform its obligations in the Placement; (vi) to the extent
applicable, the effectiveness of the Registration Statement; (vii) a customary
10b-5 letter. And (viii) the Company’s status as an “investment company” as
defined in the Investment Company Act of 1940, as amended. The Placement Agent
shall also have received on each Closing Date a negative assurance letter from
counsel for the Company, dated the Closing Date and addressed to the Placement
Agent in form and substance satisfactory to the Placement Agent.




(G)                  The Placement Agent shall be entitled to rely upon any and
all representations and warranties of the Company included in the Transaction
Documents or other purchase agreements entered into by the Company and the
Investors in connection with any Placement, subject to the qualifications and
limitations therein, including, but not limited to, any disclosure set forth on
an applicable schedule. 

SECTION 3.   REPRESENTATIONS AND WARRANTIES OF
PLACEMENT AGENT. The Placement Agent represents and warrants to the Company
that: (i) it will comply with all applicable federal laws regarding trading in
securities of the Company, (ii) it will not disclose any non-public material
information of the Company without the prior written consent of the Company, and
(iii) that it is a registered broker-dealer in good standing with the relevant
regulatory agencies.

SECTION 4.   ENGAGEMENT TERM & SURVIVAL. The
term of this Agreement shall be for a period of the earlier of six months
commencing on the Effective Date or the completion of the Placement (the
“Term”). This Agreement may be terminated by either the Company or the
Placement Agent at any time during the Term upon seven business days’ written
notice. In the event of the termination of this Agreement, the Placement Agent’s
compensation due, if any, under Section 1(B) of this Agreement will be payable
in full in accordance with Section 1(B). The provisions of Sections 1, 2, 3, 4,
5, 6, 7, 9, 10 and 11 of this Agreement and Appendix A shall survive this
Agreement’s expiration or termination. 

SECTION 5.   PLACEMENT AGENT INFORMATION. The
Company agrees that any information or advice rendered by the Placement Agent in
connection with this engagement is for the confidential use of the Company only
in its evaluation of the Placement and, except as otherwise required by law, the
Company will not disclose or otherwise refer to the advice or information in any
manner without prior written consent of the Placement Agent. 

SECTION 6.   NO FIDUCIARY RELATIONSHIP; THIRD PARTY
BENEFICIARIES. This Agreement does not create, and shall not be construed as
creating rights enforceable by any person or entity that is not a party hereto,
except those entitled hereto by virtue of the indemnification provisions hereof.
The Company acknowledges and agrees that the Placement Agent is not and shall
not be construed as a fiduciary of the Company and that the Placement Agent
shall not have any duties or liabilities to the equity holders or the creditors
of the Company or to any other person by virtue of this Agreement or the
retention of the Placement Agent hereunder, all of which are hereby expressly
waived.

SECTION 7.   INDEMNIFICATION. The parties agree to
the terms of the Placement Agent’s standard indemnification agreement, which is
attached hereto as Appendix A and incorporated herein by reference.

SECTION 8.   ANNOUNCEMENTS. The Company grants to
the Placement Agent the right to place customary announcement(s) of the closing
of the Placement in certain newspapers and to mail announcement(s) to persons
and firms selected by Placement Agent, at the Placement Agent’s expense, subject
to the Company’s prior approval, which shall not be unreasonably withheld. 




SECTION 9.   GOVERNING LAW. This Agreement will be
governed by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed entirely in such State. This
Agreement may not be assigned by either party without the prior written consent
of the other party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted
assigns. Any right to trial by jury with respect to any dispute arising under
this Agreement or any transaction or conduct in connection herewith is waived.
Any dispute arising under this Agreement may be brought into the courts of the
State of New York or into the Federal Court located in New York, New York and,
by execution and delivery of this Agreement, the Company hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. If either party shall commence an action or proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its reasonable
attorneys' fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.

SECTION 10.   ENTIRE AGREEMENT/MISC. This Agreement
embodies the entire agreement and understanding between the parties hereto, and
supersedes all prior agreements and understandings, relating to the subject
matter hereof. If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect such provision
in any other respect or any other provision of this Agreement, which will remain
in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by each of the
Placement Agent and the Company. The representations, warranties, agreements and
covenants contained herein shall survive the closing of the Placement and
delivery and/or exercise of the Securities, as applicable. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission or a .pdf format
file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or .pdf signature page were an original
thereof.

SECTION 11.   NOTICES. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder
shall be in writing and shall be deemed given and effective on the earliest of
(a) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified on the signature pages attached
hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the next
business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number on the signature pages attached
hereto on a day that is not a business day or later than 6:30 p.m. (New York
City time) on any business day, (c) the business day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or (d)
upon actual receipt by the party to whom such notice is required to be given.
The address for such notices and communications shall be as set forth on the
signature pages hereto. 




Please confirm that the foregoing correctly sets forth our
agreement by signing and returning an executed copy of this Agreement to FTGC.


	 	FT GLOBAL CAPITAL, INC. 
	 	  
	 	  
	 	By:   /s/ Patrick
      Ko                                    
	 	         Name: Patrick
      J. Ko 
	 	         Title:
      President 
	 	  
	 	Address for notice: 
	 	FT Global Capital, Inc. 
	 	1200 Abernathy Road, Suite 1700 
	 	Atlanta, GA, 30328 
	 	Fax: 770-551-8184 


Accepted and Agreed to as of the date first written above: 

	By:        /s
      Jianghuai Lin
	           Name: 	Jianghuai Lin 
	           Title: 	Chairman & Chief Executive Officer
  


Address for notice: 
21st Floor,
Everbright Bank Building 
Zhuzilin, Futian District 
Shenzhen, Guangdong,
China, 518040 
Fax: +86 (755) 8370 9333




APPENDIX A - - INDEMNIFICATION PROVISIONS 

(A)                  The Company agrees to
indemnify and hold harmless the Placement Agent and its affiliates and their
respective officers, directors, employees, agents, counsel, advisers and
consultants, and any persons controlling the Placement Agent or any of its
affiliates within the meaning of Section 15 of the Securities Act of 1933 or
Section 20 of the Securities Exchange Act of 1934 (the Placement Agent and each
such other person or entity being referred to herein as an “Indemnified
Person”), from and against all claims, liabilities, losses or damages (or
actions in respect thereof) or other expenses (and further agrees to advance all
expenses) which (A) are related to or arise out of (i) actions taken or omitted
to be taken (including any untrue statements made or any statements omitted to
be made) by the Company or its respective affiliates in connection with this
Agreement, the Placement or which affect the Placement or (ii) actions taken or
omitted to be taken by an Indemnified Person with the consent or in conformity
with the actions or omissions of the Company or their respective affiliates in
connection with this Agreement, the Placement or which affect the Placement or
(iii) any investigation, litigation, or inquiry by a regulatory or
self-regulatory agency or authority involving the Company or any transaction
arising under any agreements between the Company and the Placement Agent or (B)
are otherwise related to or arise out of the Placement Agents’ activities on
behalf of the Company or its respective affiliates pursuant to this Agreement or
(C) in any way involving or alleged to involve the Company, any Placement or any
Securities. The Company will not be responsible, however, for any losses,
claims, damages, liabilities or expenses pursuant to clause (B) of the preceding
sentence which are finally judicially determined to have resulted solely from
such Indemnified Person’s gross negligence or willful misconduct. In addition,
the Company agrees to advance (and in the absence of advancement required
hereunder) to promptly reimburse each Indemnified Person for all reasonable
out-of-pocket expenses (including fees and expenses of counsel) as they are
incurred by such Indemnified Person in connection with investigating, preparing,
conducting or defending any such action or claim, whether or not in connection
with litigation in which any Indemnified Person is a named party, or in
connection with enforcing the rights of such Indemnified Person under this
Agreement, including the costs of any claims asserted by an Indemnified Person
against any indispensable party or by way of a counterclaim in any litigation
within the scope of this provision. The Company agrees to advance such expenses
incurred by an Indemnified Person pursuant to which indemnity may be sought
hereunder within thirty (30) days after receipt by the Company of a statement
requesting such advances from time to time, whether prior to or after final
disposition of any proceeding. Such advances shall be unsecured and interest
free and without regard to the Indemnified Person’s ultimate entitlement to
indemnification under the other provisions of this Agreement. Indemnified
Persons shall be entitled to continue to receive advancement of expenses
pursuant to this section unless and until the matter of an Indemnified Person’s
entitlement to indemnification hereunder has been finally adjudicated by court
order or judgment from which no further right of appeal exists. Each Indemnified
Person undertakes to repay such amounts advanced only if and to the extent that,
it ultimately is determined that the Indemnified Person is not entitled to be
indemnified by the Company under the provisions of this Agreement. 

1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328

770-350-2698 (Office), 770-551-8184 (Fax)








(B)                  Promptly after receipt by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the Placement Agent is entitled to indemnity hereunder, the Placement Agent
will notify the Company in writing of such claim or of the commencement of such action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to the Placement Agent and
will pay the reasonable fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for
the Placement Agent reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both the Company and the Placement Agent. In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding at its sole expense provided that the Company obtains a full and unconditional release
of any claims against the Placement Agent and the Indemnified Persons from all liability on claims that are the subject matter of such proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or
on behalf of Placement Agent or any Indemnified Person. 

(C)                  The Company and the Placement Agent and any Indemnified Persons agree to notify each other promptly of the assertion of any claim or the commencement of any action or proceeding relating to a transaction
contemplated by this engagement letter. 

(D)                  If for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then the Company shall contribute to the amount paid or payable by the Placement
Agent as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement Agent on the other, but also the relative fault
of the Company on the one hand and the Placement Agent on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect of losses, claims,
damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses reasonably incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement
Agent’s share of the liability hereunder shall not be in excess of the amount of fees actually received by Placement Agent under this engagement letter (excluding any amounts received as reimbursement of expenses incurred by Placement Agent).


(E)                  These indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement is completed and shall survive the termination of this Agreement, and shall be in
addition to any liability that the Company might otherwise have to any indemnified party under this engagement letter or otherwise.