Exhibit 10.17
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of this 1st day of
April 2006, by and between Emerging Markets Consulting, LLC, a Florida limited
liability company (herein referred to as "EMC") and Intraop Medical Corporation,
a Nevada corporation (herein referred to as "the Company").
RECITALS
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A. Whereas, the Company routinely provides information about its business to
various parties to further its business and opportunities ("the Company
Information");
B. Whereas, the Company requires assistance with the design, development, and
dissemination of the Company Information;
C. Whereas, EMC has experience in assisting entities similar to the Company in
developing and disseminating the Company Information; and
D. Whereas, the Company desires to engage EMC to assist in the development and
dissemination of the Company Information and EMC desires to accept the
engagement upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Appointment and Engagement. The Company hereby appoints and engages EMC
as and EMC hereby accepts such appointment and engagement, subject to the terms
and conditions set forth in this Agreement.
2. Services to be provided by EMC. EMC shall provide the services described
on Exhibit A attached hereto and incorporated herein by reference (the
"Description of Services"). EMC and the Company shall update the Description of
Services on a periodic basis, as necessary. EMC shall perform such services in a
professional and timely manner as described in the Description of Services.
3. Term of Agreement. This Agreement shall become effective upon execution
hereof and remain in effect for a period of six months thereafter. This
Agreement shall automatically be renewed for one additional six (6) month term
("the Renewal Term") unless either the Company or EMC delivers written notice to
the other party not less than ten (10) days prior to the expiration of the
current term that it intends to terminate the Agreement at the end of such term.
Notwithstanding the foregoing, the Company may terminate this Agreement in its
entirety on the three (3) month anniversary of the date of this Agreement if the
Company, in its reasonable discretion, is not satisfied with the performance of
EMC under this Agreement by delivering written notice of such termination to EMC
not less than five (5) days prior to the end of such three (3) month term.
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4. Compensation. The Company hereby agrees to pay EMC the following
compensation ("the fee") during the term of this Agreement
(a) Ten thousand dollars ($10,000) per month payable on the first day
of each month in advance of each respective month for which services are to be
rendered during the six month term of this agreement; and if this agreement is
renewed, ten thousand dollars ($10,000) per month payable on the first day of
each month in advance of each respective month for which services are to be
rendered for each month for the Renewal Term.
(b) Two hundred thousand (200,000) restricted shares of the Company's
common stock (the "Shares") as follows: (i) 100,000 shares shall be delivered to
EMC upon the execution of this Agreement; and (ii) one hundred thousand
(100,000) shares shall be delivered to EMC upon the first day of the Renewal
Term;
(c) 100,000 cashless common stock purchase warrants (the "Warrants").
The Warrants shall vest upon execution hereof, have an exercise price of
$1.00 per share and be exercisable from the date of execution hereof until
the expiration of five years. The form of Warrant is attached hereto as
Exhibit B.
(d) Upon the first day of the Renewal Term of this agreement, EMC shall
receive100,000 cashless common stock purchase warrants (the "Warrants") which
shall vest immediately, have an exercise price of $1.15 per share and be
exercisable by EMC from the date of execution hereof until the expiration of
five years.
The Shares, the Warrants and the shares of Common Stock issuable upon
exercise of the Warrants are collectively referred to herein as "the
Securities."
(e) Upon delivery of any portion of the fee paid either in cash or
securities to EMC, that portion of the fee shall be deemed earned and
non-refundable and is paid to EMC for the purpose of assuring EMC's availability
to perform the services set forth on Exhibit A hereto.
5. Securities Matters. EMC hereby represents, warrants and agrees as
follows:
(a) Purchase Entirely for Own Account. The Securities will be acquired
for investment for EMC's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that EMC has no
present intention of selling, granting any participation in, or otherwise
distributing the Securities.
(b) Reliance on Representations. EMC understands that the Securities
are not registered under the Securities Act of 1933, as amended (the "1933 Act")
on the grounds that the sale provided for in this Agreement and the issuance of
Securities hereunder is exempt from registration under the Act pursuant to
Section 4(2) thereof and Rule 506 of Regulation D promulgated thereunder, and
that the Company's reliance on such exemption is predicated on EMC's
representations set forth herein.
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(c) Disclosure of Information. EMC believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Securities. EMC further represents that it has had an opportunity
to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of Securities and the business, properties, prospects
and financial condition of the Company.
(d) Investment Experience. EMC is a sophisticated investor and
acknowledges that it is able to fend for itself, himself or herself, can bear
the economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Securities. EMC has not been organized for the
purpose of acquiring the Securities.
(e) Accredited Investor. EMC is an "accredited investor" within the
meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation D,
as presently in effect.
(f) Restricted Securities. EMC understands that the Securities it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act, only in certain limited circumstances. In this connection, EMC
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the 1933 Act.
(g) Further Limitations on Disposition. For a period of two years from
the date hereof, without in any way limiting the representations set forth
above, EMC further agrees not to make any disposition of all or any portion of
the Securities unless and until:
(i) There is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) EMC shall have notified the Company of its proposed
disposition in reliance upon Rule 144, and (ii) if reasonably requested by the
Company, EMC shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the 1933 Act. It is agreed that the Company
will not require opinions of counsel from EMC for transactions made pursuant to
Rule 144, except in unusual circumstances and in such instance, the cost of such
opinion shall be borne by the Company.
(iii) Notwithstanding the provisions of Subsections (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by EMC that is a partnership to a partner or affiliated
partnership or fund, of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his or her spouse
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or to the siblings, lineal descendants or ancestors of such partner or his or
her spouse, if the transferee agrees in writing to be subject to the terms
hereof to the same extent as if he or she were an original purchaser hereunder.
(h) Legends. It is understood that the certificates evidencing the
Securities may bear a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
(i) Rule 144 and Resale. Upon EMC notifying the Company and providing,
at its expense, an opinion of counsel that the Securities are eligible for
resale under Rule 144 promulgated under the 1933 Act (including any Rule adopted
in substitution or replacement thereof), the Company will allow such sale or
transfer and not interfere in any way with such sale or transfer. If any
certificate representing the Securities is presented to the Company's transfer
agent for registration or transfer in connection with any sales theretofore made
in compliance with the securities laws, whether because the Securities are
subject to an effective registration statement under the 1933 Act or are
eligible for resale under Rule 144 provided such certificate is duly endorsed
for transfer by the appropriate person or accompanied by a separate stock power
duly executed by the appropriate person and guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion program),
pursuant to SEC Rule 17Ad15. in each case, the Company will promptly instruct
its transfer agent to allow such transfer and to issue one or more new
certificates representing such Securities to the transferee. All costs of such
transfer shall be borne by the Company including the costs of any legal opinion.
The Company shall fully comply with any and all federal or state securities
laws, rules and regulations governing the issuance of any such Securities or the
resale by EMC.
6. Reports Under Securities Exchange Act of 1934. With a view to making
available to EMC the benefits of Rule 144 promulgated under the 1933 Act and any
other rule or regulation of the SEC that may at any time permit EMC to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
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(c) furnish to EMC, so long as EMC owns any Securities, forthwith upon
request: (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act; (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company; and (iii) such other information
as may be reasonably requested in order to permit EMC to avail itself of any
rule or regulation of the SEC or any state securities authority which permits
the selling of any such securities without registration.
7. Company Information.
(a) For purposes of this Agreement, the Company Information shall be
deemed to include all information involving the Company provided to or
disseminated in any fashion by EMC or the Company or which is in the public
domain, including but not limited to information used in electronic media, web
casts, information provided verbally or in writing, information provided to
persons or entities in EMC's email address database, data and information
provided to Wall Street Capital Funding, information contained in press releases
concerning the Company, and information disseminated about the Company at any
seminar or trade show. EMC acknowledges and agrees that the Company shall have
final approval with respect to the dissemination of the Company Information
including, without limitation, the nature and format of the Company Information
distributed, the means of distribution and the parties to whom such Company
Information is distributed.
(b) The Company shall provide EMC, on a regular and timely basis, with
all approved data and information about the Company, its management, its
products and/or services, and its operations, as reasonably requested by EMC for
performance of its services under this Agreement. The Company shall be
responsible for advising EMC of any facts that would affect the accuracy of any
prior data and information previously supplied to EMC.
(c) The Company shall promptly provide EMC with full and complete
copies of all: (a) Form 8-K, 10-QSB and 10-KSB filings with the SEC; (b) all
stockholder reports and communications and press releases; (c) data and
information supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and (d) product/service brochures and sales
materials.
(d) EMC's services and any print or advertorial materials developed by
EMC will only be used for training purposes of EMC's employees and/or for
educational purposes or in connection with the Company's products and/or
services and will not be used in the offer or sale of the Company's securities
or in connection with any type of promotion or the Company's securities.
(e) The Company will notify EMC contemporaneously if any information
or data being supplied to EMC has not been generally released or promulgated.
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8. Duties and Representations of Company
a. No Pending Material Litigation or Proceedings. There are no actions,
suits or proceedings pending or, to the best of the Company's knowledge,
threatened against or affecting the Company at law or in equity or before or by
any federal, state, municipal or other governmental department, commission,
court, board, bureau, agency or instrumentality, domestic or foreign, or
affecting any of the officers or directors or principal stockholders of the
Company in connection with the business, operations or affairs of the Company,
which might result in any adverse change in the business of the Company, or
which might prevent the Company from performing the services contemplated by
this Agreement.
b. Compliance with Law and Government Regulations. The Company is in
compliance, and during the term of this Agreement will be in compliance, with
all applicable statutes, regulations, decrees, orders, restrictions, guidelines
and standards, whether mandatory or voluntary, imposed by the United States of
America, any state, county, municipality or agency of any thereof, and any
foreign country or government to which the Company is subject. Without limiting
the generality of the foregoing, the services contemplated by this Agreement do
not and will not: (a) involve effecting transactions in any security, or
inducing, or attempting to induce the purchase or sale of any security which
would require the Company or its officers or employees to register under the
1934 Act; (b) activities which would require the Company or its agents to
register under the Investment Advisors Act of 1940, as amended; or (c)
activities which would under state regulation relating to broker-dealers or
investment advisors require registration or licensing.
c. Certain Business Practices. No officer, director, shareholder, employee,
agent or other representative of the Company, or any person acting on behalf of
the Company, has or will directly or indirectly, given or agreed to give or give
any illegal, unethical or improper gift or similar benefit to any broker,
dealer, governmental employee or other person who is or may be in a position to
help or hinder the Company or influence the price of a security.
d. The Company shall act diligently and promptly in providing materials to
EMC and shall promptly inform EMC of any requested changes, misprints, errors or
inaccuracies in any materials provided to or prepared by EMC. Prior to
dissemination of any Company Information, the Company will review and verify all
information contained therein is true and accurate in all material respects. The
Company acknowledges that EMC is relying exclusively upon the information it
receives from the Company and the Company acknowledges that it is responsible
for the truthfulness, completeness and reliability of the information provided
to the Company.
9. Activities of EMC. EMC's activities pursuant to this Agreement or as
contemplated by this Agreement do not constitute and shall not constitute acting
as a securities broker or dealer or finder. Further, EMC shall not receive any
compensation of any form for introducing or locating a potential investor or
investor or members of the financial community to the Company.
10. Compliance with 1933 Act Section 17(b). The Company will ensure that
publishers of any publications containing the Company Information will comply
with Section 17(b) of the 1933 Act regarding any publication, notice, circular,
advertisement, newspaper, article, letter, investment
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service, or communication describing the Company or its securities which is
disseminated, released, circulated, or published by EMC or any other party by
use of any means or instruments of transportation or communication in interstate
commerce or by the use of the mails.
11. Where Services shall be performed. EMC's services shall be performed at
EMC's main office location or other such designated location as EMC deems the
most advantageous for the services to be performed.
12. EMC as an Independent Contractor, Third Parties and Conflicts. EMC is
an independent contractor, and not an employee of the Company. EMC shall be
responsible for all out-of-pocket costs it incurs in connection with the
performance of its services under this Agreement. EMC has no authority to bind
the Company or any affiliate of the Company in any manner including any legal
action, contract, agreement, or purchase, and such action cannot be construed to
be made in good faith. EMC is not entitled to any medical coverage, life
insurance, savings plans, health insurance, or any and all other benefits
afforded Company employees. EMC shall be solely responsible for any Federal,
State or local taxes. EMC may use subcontractors and third parties to provide
the services set forth herein at its discretion, with the prior written approval
of the Company. The Company hereby acknowledges that EMC does, and shall,
represent and service other and multiple clients in the same manner as it does
the Company. Additionally, the Company hereby acknowledges that EMC may
represent companies which compete with the Company and that this Agreement is
non-exclusive with regard to EMC's services.
13. Termination of Agreement. This Agreement may be terminated prior to the
expiration of the term set forth in Section 10 herein as follows:
(a) Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary;
(b) Upon the other party taking the benefit of any insolvency law;
(c) Upon the other party having or applying for a receiver appointed
for either party: or
(d) In the event the other party is unable to perform or is in breach
of any material term of this Agreement. In such instances, any
fees paid to EMC shall be non-refundable.
14. Returning Company Documents. EMC agrees that, upon termination of this
Agreement, EMC shall deliver to the Company (and will not keep in EMC's
possession or deliver to anyone else) any and all records, data, notes, reports,
proposals, lists, correspondence, other documents or property, or reproductions
of any of the aforementioned items belonging to the Company, its successors or
assigns.
15. Representations of EMC. EMC makes no representation to the Company that
any Company Information will result in any enhancement or benefit to the
Company.
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16. Agreement not to Solicit EMC Employees. The Company acknowledges that
EMC has expended considerable time, effort and expense in training its
respective employees, advisors, independent contractors, subcontractors and EMC
in methods of operation, and that the foregoing will acquire confidential
knowledge and information as to accounts, customers, business patrons,
databases, as well as confidential knowledge and information concerning the
methods, forms, contracts and negotiations of EMC. As such, the Company is
prohibited during the term of this Agreement and for a period of one (1) year
after the termination of this Agreement from soliciting any employee of EMC as a
potential employee or consultant with the Company without the prior written
consent of EMC, which shall not be unreasonably withheld.
17. Miscellaneous.
(a) Counterparts. This Agreement may be executed in two or more
counterparts, all of which 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. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof, provided that the failure to so deliver any manually executed
Execution Page shall not affect the validity or enforceability of this
Agreement.
(b) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(c) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(d) Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding between EMC and the Company
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor EMC makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and EMC.
(e) Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally, by responsible overnight carrier or by
confirmed facsimile, and shall be effective five (5) days after being placed in
the mail, if mailed, or upon receipt or refusal of receipt, if delivered
personally or by responsible overnight carrier or confirmed facsimile, in each
case addressed to a party. The addresses for such communications shall be:
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If to the Company:
Name: Xx. Xxxxxx X. Goer
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to EMC:
Emerging Markets Consulting, LLC
000 Xxxxx Xxxxx Xxx, #X
Xxxxxxx, Xxxxxxx 00000 XXX
Attn: Xxxxx X. Xxxxxxx
Facsimile:(000) 000-0000
(f) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns.
(g) Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
(h) Further Assurances. The Company and EMC shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Law and Arbitration. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida applicable to contracts
executed and performed in such State, without giving effect to conflict of law
principles. All controversies, claims and matters of difference arising between
the parties under this Agreement shall be submitted to binding arbitration in
Orange County, Florida under the Commercial Arbitration Rules of the American
Arbitration Association ("the AAA") from time to time in force (to the extent
not in conflict with the provisions set forth herein). This Agreement to
arbitrate shall be specifically enforceable under applicable law in any court of
competent jurisdiction. Notice of the demand for arbitration shall be filed in
writing with the other parties to this Agreement and with the AAA. Once the
arbitral tribunal has been constituted in full, a hearing shall be held and an
award rendered as soon as practicable. The demand for arbitration shall be made
within a reasonable time after the claim, dispute or other matter in question
has arisen, and the parties are not making progress toward a resolution. In no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter would be barred by the
applicable contractual or other statutes of limitations. The parties shall have
reasonable discovery rights as determined by the arbitration. The award rendered
by the arbitrators shall be final and judgment
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may be entered in accordance with applicable law and in any court having
jurisdiction thereof. The decision of the arbitrators shall be rendered in
writing and shall state the manner in which the fees and expenses of the
arbitrators shall be borne.
(j) Waivers. No delay on the part of any party in exercising any right,
power, or privilege hereunder shall operate as a waiver thereof. Nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies of any party based upon, arising out of or
otherwise in respect of any inaccuracy in or breach by any other party of any
representation, warranty, covenant or Agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject matter of any other representation, warranty,
covenant or Agreement contained in this Agreement (or in any other Agreement
between the parties) as to which there is no inaccuracy or breach.
(k) Variations in Pronouns. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender and vice versa, all singular words shall include the plural, and all
plural words shall include the singular. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
(l) Presumption Against Scrivener. Each party waives the presumption that
this Agreement is presumed to be in favor of the party which did not prepare it,
in case of a dispute as to interpretation.
(m) Attorney's Fees. In the event either party is in default of the terms
or conditions of this Agreement and legal action is initiated or suit be entered
as a result of such default, the prevailing party shall be entitled to recover
all costs incurred as a result of such default including all costs, reasonable
attorney fees, expenses and court costs through trial, appeal and to final
disposition.
(n) Authority. Each of EMC and the Company has the full legal right and
power and all authority and approval required to enter into, execute and deliver
this Agreement and to perform fully the obligations hereunder including all
requisite manager, member or director approvals, as applicable. This Agreement
has been duly executed and delivered and is the valid and binding obligation of
EMC and the Company enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency, or other similar laws generally
affecting the enforcement of creditors' rights. Each of EMC and the Company
represents that except with respect to existing Company Information and properly
licensed materials, the performance, distribution, or use of anticipated
materials will not violate the rights of any third parties. The execution and
delivery of this Agreement and the other agreements contemplated hereunder, and
the consummation of the transactions contemplated hereby and thereby, and the
performance of this Agreement by EMC and the Company, in accordance with their
respective terms and conditions, will not: (i)
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require the approval or consent of any foreign, federal, state, county, local,
or other governmental or regulatory body or the approval or consent of any other
person; (ii) conflict with or result in any breach or violation of any of the
terms and conditions of, or constitute (or with notice or lapse of time or both
would constitute) a default under any order, judgment, or decree applicable to
EMC or the Company, as applicable, or any instrument, contract, or other
agreement to which EMC or the Company is a party or by or to which EMC or the
Company is bound or subject; or (iii) result in the creation of any lien or
other encumbrance on the assets or properties of EMC or the Company.
(o) Failure to Perform. In the event EMC fails to perform its work or
services hereunder for any reason, its entire liability to the Company shall not
exceed the actual damage to the Company as a result of such non-performance. In
no event shall EMC be liable to the Company or any other party for any indirect,
special or consequential damages.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date set forth below:
EMC:
Emerging Markets Consulting, LLC
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: April 7, 2006
COMPANY:
Intraop Medical Corporation
By: /s/ Xxxxxx X. Goer
------------------
Name: Xx. Xxxxxx X. Goer
Title: Chief Executive Officer
Date: April 6, 2006
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EXHIBIT A
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Description of Services
Services provided by EMC to the Company may include the following, as requested
by the Company:
(a) Arranging for and providing electronic media and web cast services
to enable the Company to conduct conference calls between it and the public on a
monthly basis starting no later than three weeks after signing this Agreement.
(b) Drafting and/or editing and/or designing and/or assembling the
Company Information (as defined in Section 7), including but not limited to
information used in electronic media, web casts, information provided verbally
or in writing, information provided to persons or entities in EMC's email
address database, data and information provided to Wall Street Capital Funding,
information contained in press releases concerning the Company, and information
disseminated about the Company at any seminar or trade show. The Company and EMC
shall review and mutually agree on the specific services to be provided under
this paragraph (b).
(c) Make calls to and attend meetings with registered brokers selected
by EMC, with the prior written consent of the Company. The initial call to the
registered brokers will provide a brief explanation of the Company. The phone
call will be followed promptly by a fax or email to the registered brokers in a
bullet sheet format that provides more detail for the registered broker to
review. The initial call to the registered brokers will be followed up by a
number of follow up calls to the registered brokers over time, not less than 1-5
follow-up calls per month, which will discuss Company developments reflected in
news releases and SEC filings. EMC will make a minimum of 200 and maximum of 450
contacts a week to registered brokers during the term of this Agreement and will
provide the Company with adequate documentation to verify the number of contacts
and identity of brokers contacted.
(d) Dissemination of one Wall Street News Alerts by Wall Street
Capital Funding no later than April 15th.
(e) Dissemination of a Company profile approved by the Company to
EMC's existing email address database no later than 2 business days after
signing this Agreement and distribute updates to such profile on a
quarterly basis thereafter.
(f) Edit up to 20 press releases per quarter, as provided by the
Company.
(g) Dissemination of the Company Information Package at trade shows
that will be attended by EMC. Provide the Company with a list of trade shows EMC
plans on attending in the six months following the signing of this agreement.
(h) Provide the Company with a monthly report on or before the 5th
business day of each month summarizing EMC's services performed under this
Agreement for the preceding month and its planned services for the current
month. Such report will be in form and substance satisfactory to the Company and
EMC.
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EXHIBIT B
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Form of Warrant
(see attached)
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
NOR HAVE THEY BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY
STATE, AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR
TRANSFERRED EXCEPT (i) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES,
OR (ii) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT.
WARRANT TO PURCHASE
COMMON STOCK OF
INTRAOP MEDICAL CORPORATION
FOR VALUE RECEIVED, subject to the terms and conditions herein set forth,
Emerging Markets Consulting, LLC, a Florida limited liability company ("Holder")
is entitled to purchase from Intraop Medical Corporation, a Nevada corporation
(the "Company"), at any time prior to the Expiration Date (as defined below), at
a price per share as set forth in Section 1 hereof (the "Warrant Price"), the
number of fully paid and non-assessable shares of common stock of the Company,
$0.001 par value, ("Common Stock") as set forth in Section 2 hereof (the
"Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be __________ ($________) (the "Warrant Price"), subject to
adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon exercise of this
Warrant shall be _____________, subject to adjustment as provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in accordance with
Section 8 below, this Warrant shall expire and shall no longer be exercisable
after April __, 2011 (the "Expiration Date"). Prior to the Expiration Date, the
Company may not call or otherwise redeem this Warrant without the prior written
consent of Holder.
4. No Fractional Shares. This Warrant may not be exercised as to fractional
Shares.
5. No Stockholder Rights. This Warrant shall not entitle Holder to any of
the rights of a stockholder of the Company until such time as Holder exercises
this Warrant.
6. Reservation of Shares. The Company covenants that during the period this
Warrant is exercisable it will reserve from its authorized and unissued shares
of Common Stock a sufficient number of shares to provide for the issuance of the
maximum number of shares of Common Stock issuable upon the exercise of this
Warrant. The Company agrees that its issuance of this Warrant shall constitute
full authority to its officers to instruct the Company's transfer agent to issue
the necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
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7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in part, by
the surrender of this Warrant at the principal office of the Company, together
with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
In lieu of exercising this Warrant pursuant to the first paragraph of
Section 7 (a), Holder may elect to receive Shares equal to the value of this
Warrant (or any portion thereof remaining unexercised) by surrender of this
Warrant at the principal office of the Company together with the Subscription
Form, in which event the Company shall issue to Holder a number of Shares
computed using the following formula:
X = Y (A-B)
---------
A
Where X = the number of Shares to be issued to Holder.
Y = the number of Shares for which this Warrant is then being exercised
(at the date of such exercise).
A = the fair market value of one Share (at the date of such exercise).
B = the Warrant Price (as adjusted to the date of such exercise).
For purposes of this subsection fair market value of one Share shall mean:
(i) The average of the closing bid and asked prices of the Common Stock
quoted in the NASDAQ National Market System or the Over-the-Counter market
or the closing price quoted on any exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of The
Wall Street Journal for the five (5) trading days prior to the date of
determination of the fair market value; or
(ii) If the Common Stock is not publicly traded, the per share fair market
value of the Common Stock shall be determined in good faith by the
Company's Board of Directors. If Holder disagrees with the determination by
the Board of Directors of the fair market value of the Common Stock then
such fair market value shall be determined by an independent appraiser
selected jointly by the Company and Holder. The cost of such appraisal
shall be paid equally by the Company and Holder.
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(b) As promptly as practicable on or after such date, the Company
shall cause to be issued and delivered to Holder a certificate or certificates
for the number of full Shares issuable upon such exercise. Notwithstanding the
foregoing or any other provision of this Warrant, this Warrant can be exercised
in whole or in part, provided that each partial exercise shall not be for less
than one thousand (1,000) Shares at any time unless at such time less than one
thousand (1,000) such Shares are subject to such exercise.
(c) Issuance of certificates for the Shares upon the exercise of this
Warrant shall be made without charge to the registered holder hereof for any
issue or transfer tax or other incidental expense with respect to the issuance
of such certificates, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 hereof.
8. Automatic Termination. In the event of the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
in which the Company's stockholders do not own at least a majority of the
outstanding voting securities of the surviving corporation or business entity
after such transaction (based solely on such Company stockholders' holdings of
the Company prior to the transaction) then the Company shall give Holder at
least twenty (20) days written notice of the proposed effective date and terms
of such offering, transaction or agreements, and if this Warrant has not been
exercised before the effective date set forth in such notice, then this Warrant
and the rights hereunder shall automatically terminate in its entirety.
9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be assigned or
transferred, except as provided herein and in accordance with and subject to the
provisions of (i) applicable state securities laws, and (ii) the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (such
Act and such rules and regulations being hereinafter collectively referred to as
the "Act"). Any purported transfer or assignment made other than in accordance
with this Section 10 shall be null and void and of no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred or
assigned only upon receipt by the Company of (i) notice of the proposed transfer
or assignment and a detailed statement of the circumstances surrounding the
proposed transfer or assignment and (ii) if reasonably requested by the Company,
an opinion of counsel reasonably satisfactory to the Company that (i) the
transferee is a person to whom this Warrant may be legally transferred without
registration under the Act, and (ii) such transfer will not violate any
applicable law or governmental rule or regulation, including, without
limitation, any applicable federal or state securities law.
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(c) Any assignment permitted hereunder shall be made by surrender of
this Warrant to the Company at its principal office with the Assignment Form
annexed hereto duly executed and funds sufficient to pay any transfer tax, if
any. In such event, the Company shall, without charge, execute and deliver a new
warrant in the name of the assignee named in such instrument of assignment in
the amount so assigned and this Warrant shall be promptly canceled, provided,
however, that in the event that Holder hereof shall assign or transfer less than
the full amount of this Warrant, a new warrant evidencing the remaining portion
of this Warrant not so assigned or transferred shall be issued in the name of
Holder.
10. Adjustments to Warrant Price and Shares.
(a) If outstanding shares of the Company's Common Stock shall be subdivided
into a greater number of shares or a dividend in Common Stock shall be paid in
respect of Common Stock, the Warrant Price in effect immediately prior to such
subdivision or at the record date of such dividend shall simultaneously with the
effectiveness of such subdivision or immediately after the record date of such
dividend be proportionately reduced. If outstanding shares of Common Stock shall
be combined into a smaller number of shares, the Warrant Price in effect
immediately prior to such combination shall, simultaneously with the
effectiveness of such combination, be proportionately increased. When any
adjustment is required to be made in the Warrant Price, the number of shares of
Common Stock purchasable upon the exercise of this Warrant shall be changed to
the number determined by dividing (i) an amount equal to the number of shares
issuable upon the exercise of this Warrant immediately prior to such adjustment,
multiplied by the Warrant Price in effect immediately prior to such adjustment,
by (ii) the Warrant Price in effect immediately after such adjustment.
(b) When any adjustment is required to be made in the number of shares of
Common Stock purchasable hereunder or the Warrant Price pursuant to this Section
10, the Company shall promptly mail to Holder a certificate setting forth (i) a
brief statement of the facts requiring such adjustment, (ii) the Warrant Price
after such adjustment and (iii) the kind and amount of stock or other securities
or property into which this Warrant shall be exercisable after such adjustment.
(c) The Company shall not, by amendment of its Certificate of
Incorporation, as amended from time to time, or through a reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of its terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in carrying
out of all the provisions of this Section 10 and in taking all such action as
may be necessary or appropriate to protect Holder's rights under this Section 10
against impairment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
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12. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. This Warrant shall be binding on and inure to
the benefit of the parties hereto and their respective successors and assigns.
In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute in
this Warrant. All notices and other communications from the Company to Holder
shall be mailed by prepaid courier or first-class registered or certified mail,
postage pre-paid, to the address furnished to the Company in writing by the last
holder who shall have furnished an address to the Company in writing.
[remainder of this page intentionally left blank]
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Issued this ___ day of _______, 2006.
INTRAOP MEDICAL CORPORATION
By: ________________________
Name: Xxxxxx X. Goer
Title: President and CEO
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SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably (a) exercises such warrant for, and
purchases ______ shares of Common Stock (the "Shares") of Intraop Medical
Corporation, a Nevada corporation (the "Company"), purchasable upon the exercise
of such Warrant, and herewith makes payment therefor, or (b) exercises such
Warrant for ______ shares of Intraop Medical Corporation Common Stock
purchasable under the Warrant pursuant to the net exercise provisions of the
second paragraph of Section 7(a) of such Warrant all at the price and on the
terms and conditions specified in such Warrant.
1.01 Authorization. This exercise constitutes a valid and legally binding
obligation of the undersigned, enforceable in accordance with its terms.
1.02 Investment Representation. The undersigned acknowledges, represents,
and warrants that it (a) has a preexisting personal or business relationship
with the Company, and/or by reason of its business or financial experience has
the capacity to protect its own interests in connection with the transaction,
and (b) is an "accredited investor" under Regulation D of the Securities Act of
1933, as amended (the "Act"). The undersigned further acknowledges that it is
aware that the Shares have not been registered under the Act, or qualified under
any state's securities laws. The Shares are being acquired for investment
purposes only and not for sale or with a view to distribution of all or any part
thereof.
1.03 Access to Information. The undersigned represents that it has or will
have had upon exercise of the Warrant an opportunity to ask questions of and
receive answers from the Company regarding the terms and conditions of its
purchase of the Shares concerning the business, financial affairs and other
aspects of the Company, and it has further had the opportunity to obtain any
information (to the extent the Company possesses or can acquire such information
without unreasonable effort or expense) which it deems necessary to evaluate its
investment or to verify the accuracy of information otherwise provided to it.
The undersigned acknowledges that it is not relying upon any person, firm or
corporation (other than the Company and its officers and directors) in making
its investment or decision to invest in the Company, and the undersigned
represents that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment.
1.04 Investment Experience. The undersigned represents and warrants that by
reason of its financial and business experience, it has the capacity to protect
its interests in connection with these transactions.
1.05 Restricted Securities. The undersigned understands that the Shares
will be characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances and that otherwise such securities must be held
indefinitely. In this connection, the undersigned represents that it is familiar
with SEC Rule 144, as presently in effect, and the conditions which must be met
in order for that Rule to be available for resale of "restricted securities,"
and understands the resale limitations imposed by the Act.
1
1.06 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the undersigned further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a "Registration Statement" under the Act
covering such proposed disposition and such disposition is made in accordance
with such Registration Statement and any applicable requirements of state
securities laws; or
(b) (i) the undersigned shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably
requested by the Company, shall have furnished the Company with an opinion of
counsel (except for dispositions pursuant to Rule 144 of the Rules and
Regulations under the Act which dispositions shall not so require an opinion of
counsel) reasonably satisfactory to the Company, that such disposition will not
require registration of the Shares under the Act or the consent of or permit
from appropriate authorities under any applicable state securities law.
(c) Notwithstanding the provisions of paragraphs (a) and (b) above, no such
Registration Statement or opinion of counsel shall be necessary for a transfer
by the undersigned to a constituent stockholder or constituent partner
(including any constituent of a constituent) of the undersigned, if the
transferee or transferees agree in writing to be subject to the terms hereof to
the same extent as if they were the undersigned hereunder.
2. RESTRICTIONS ON THE TRANSFER OF SECURITIES.
2.01 Corporate Securities Law. The Shares shall be transferred only in
compliance with the conditions specified in Section 1.06, which conditions are
intended to ensure compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Each
certificate representing the Shares shall bear at least a legend substantially
in the following form until such time as the conditions of such legend have been
met:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"), NOR HAVE THEY BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE
PERMITTED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER, THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT OR AS
OTHERWISE PERMITTED BY THE COMPANY, OR IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, REGISTRATION UNDER THE ACT IS UNNECESSARY IN ORDER FOR SUCH
TRANSFER TO COMPLY WITH THE ACT AND WITH APPLICABLE STATE SECURITIES LAWS.
2
The Company shall, within ten (10) days of the request of any holder of a
certificate bearing the foregoing legend and the surrender of such certificate,
issue a new stock certificate in the name of the transferee provided that there
has been compliance with the provisions of subsection 1.06 above.
2.02 Additional Legends. The Company may also impose any additional legend
required under applicable federal or state securities laws or permitted under
its bylaws and shall be entitled to issue stop transfer notices on its books
with respect to any securities purchased hereunder until the conditions set
forth in the applicable legends have been met.
Dated:_______________
--------------------------------------------
(Signature of Registered Owner)
--------------------------------------------
(Name)
--------------------------------------------
(Street Address)
--------------------------------------------
(City, State, Zip Code)
--------------------------------------------
Social Security or Tax Identification Number
If the number of Shares issuable upon this exercise shall not be all of the
Shares which the undersigned is entitled to purchase in accordance with the
enclosed Warrant, the undersigned requests that a new warrant evidencing the
right to purchase the Shares not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Date:_______________ Name of Holder:
(Print)_____________________________________
(By)________________________________________
(Name:)
(Title:)
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
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FORM OF ASSIGNMENT
------------------
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
--------------------------------
--------------------------------
--------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Intraop Medical Corporation Common Stock purchasable under
the within Warrant, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated: ___________
-------------------------------
(Signature of Registered Owner)
