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EXHIBIT 1.1
PLACEMENT AGENT AGREEMENT
To: Xxxxxxx X. Xxxxx, President
Capital Growth Management, Inc.
0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx #0
Xxxxxxx, Xxxxxxx 00000
Dear Xx. Xxxxx:
The undersigned, HealthTronics, Inc. a corporation formed pursuant to
the laws of the State of Georgia (the "Company") hereby confirms its agreement
("Agreement") with you as follows:
1. INTRODUCTION.
A. The Company is offering for sale an aggregate of 1,000,000
shares of its common stock at $6.00 per share through your firm as Placement
Agent and through a selected group of broker-dealers to be chosen by you who are
registered under the Securities Exchange Act of 1934 (the "Exchange Act") and
who are members in good standing of the National Association of Securities
Dealers, Inc. ("NASD") (Hereinafter this selected group of broker-dealers shall
be referred to as "Selected Dealers"). Each investor shall be required to
purchase a minimum of 100 shares. The offering is being made in accordance with
the Prospectus of the Company on file with the Securities and Exchange
Commission as may be amended from time to time (the "Prospectus"), a copy of
which is enclosed herewith.
B. The Company shall have the right to approve all Selected
Dealers selected by you (such selection to not be unreasonably withheld). If you
desire to participate as Placement Agent in the offer and sale of Company's
Common Stock, you should execute and return this Agreement to the Company at 000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, attn. Xx. Xxx X. Xxxxx,
President. Upon approval and acceptance of this Agreement by the Company, this
Agreement will take effect.
2. MUTUAL REPRESENTATIONS AND WARRANTIES.
A. The Company represents and warrants to you that:
(i) The Company has delivered to you the Prospectus which
contains all the information authorized by the Company to be used in connection
with the offer and sale of its Common Stock.
(ii) The Company is duly organized and validly existing as
a corporation under the laws of the State of Georgia. The Company has all
requisite authority to own its properties and conduct its business as described
in the Prospectus, and the Company has all the power, authority, authorization,
approvals and orders to enter into this Agreement and to carry out the
provisions and conditions hereof.
(iii) The Company is not in violation of its Articles of
Incorporation or by-laws. Neither the execution and delivery of this Agreement,
the consummation of the transactions herein contemplated, nor compliance with
the terms, provisions or conditions of the Articles of Incorporation or by-laws
of the Company or delivery of this Agreement, nor compliance with the terms and
provisions hereof will conflict with, or result in a breach of, any of the
terms, provisions or conditions of the Articles of Incorporation of the Company
or any agreement or instrument to which the Company is a party or by which it is
or may be bound.
(iv) The stock, upon the payment therefor and issuance
thereof, will conform to all statements in relation thereto contained in the
Prospectus; will have the rights set forth in the Articles of Incorporation,
will be duly and validly authorized and issued, fully paid and nonassessable,
and the Company, upon such issuance, will have an authorized and issued
capitalization as set forth in the Prospectus.
(v) Within the past ten years, neither the Company nor any
of its affiliates, or any person directly or indirectly controlling, controlled
by or under common control with the Company, including any employee:
(a) Has been found by the SEC or any jurisdiction or
any court willfully to have made or caused to be made any statement which was,
at the time and in the light of the circumstances under which it was made, false
and misleading with respect to any material fact, or to have omitted to state
any material fact, which was required to be stated, in any application for
registration or report required to be filed under the federal securities laws or
under the securities laws of any jurisdiction relating to securities, the
conduct of business or registration as a broker, dealer, municipal securities
dealer, or investment adviser or associated person thereof;
(b) Has been convicted of any felony or misdemeanor (1)
involving the purchase or sale of any security, the taking of a false oath, the
making of a false report, bribery, perjury, burglary or conspiracy to commit any
such offense; (2) arising out of the conduct of the business of a broker,
dealer, municipal securities dealer, investment advisor, bank, insurance company
or fiduciary; (3) involving the larceny, theft, robbery, extortion, forgery
counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion or
misappropriation of funds or securities; or (4) involving the violation of
Section 152, 1341, 1342 or 1343 or Chapter 25 or 47 of Xxxxx 00, Xxxxxx Xxxxxx
Code (concealment of assets, false oaths and claims, or bribery, in any
bankruptcy proceeding; mail fraud, fraud by wire, including telephone,
telegraph, radio or television; counterfeiting, forgery; fraud, false
statements, money laundering); or has pleaded nolo contendere to any such felony
or misdemeanor;
(c) is enjoined permanently, or has been enjoined
temporarily, by order, judgment or decree of any court of competent jurisdiction
from acting as an investment advisor, underwriter, broker, dealer or municipal
securities dealer, or as an associated person or employee of any of the
foregoing, or as an affiliated person or employee of a any investment company,
bank, or insurance company, or from engaging in or continuing any conduct or
practice in connection with the purchase or sale of any security, or arising out
of any securities or investment advisory activities;
(d) Has been found by the SEC or any jurisdiction or
any court to have violated or to have aided, abetted, counseled, commanded,
induced or procured the violation by any other person of the federal laws, or
the laws of any jurisdiction, relating to securities or relating to the conduct
of business as a broker, dealer, municipal securities dealer, investment advisor
or investment company, any rule or regulation under any of such laws, or any
rule of the Municipal Securities Rulemaking Board, or to have failed reasonably
to supervise another person who committed such a violation or to have been
unable to comply with any of the foregoing;
(e) Has been the subject of an order of the SEC entered
pursuant to Section 15(b), 15B(a), or 15B(c) or the Securities Exchange Act
of 1934, or Section 203(e) or (f) of the Investment Advisors Act of 1940 or is
subject to a United States Postal Service false representation order entered
under 39 U.S.C. Section 3005 within 5 years to November 15, 1994 or is subject
to a restraining order or preliminary injunction entered under 39 U.S.C.
Section 3007 with respect to conduct alleged to have violated 39 U.S.C. Section
3005;
(f) Has been denied membership or registration with, or
participation in, or has been suspended, revoked or expelled from membership,
participation in or registration with any self-regulatory organization; or has
been suspended or barred from being associated with any member of such
self-regulatory organization;
(g) Has been suspended, revoked or expelled from
registration (license) with the SEC or any jurisdiction (or any agency thereof)
as a broker, dealer, investment advisor, securities salesman, or municipal
securities dealer, or has been barred from being associated with a person
engaged in such business;
(h) Has been found to have been a cause of (1) the
denial, suspension, or revocation of any person's membership or participation
in, or registration with the SEC, any jurisdiction (or any agency thereof), or
any self-regulatory organization, (2) any bar or suspension of any person from
being associated with a broker, dealer, municipal securities dealer, or member
of a self-regulatory organization;
(i) Has been the subject of any cease and desist,
desist and refrain, prohibition, or similar order which was issued by the
United States or any jurisdiction arising out of the conduct of the business of
a broker, dealer, municipal securities dealer, or investment advisor; or
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(j) Has been the subject of any order, judgment, decree
or other sanction of a foreign court, foreign exchange, or foreign governmental
or regulatory agency arising out of any securities or investment advisory
activities.
(vi) The Company has no knowledge of any pending or threatened
claims which would result in any of the events specified in Paragraph 2 A (v).
B. You represent and warrant to the Company that:
(i) You have been duly organized and are validly
existing as a corporation under the laws of the State of Georgia. You have all
such power, authority, authorizations, approvals and orders to enter into this
Agreement and to carry out the provisions and conditions hereof.
(ii) You are, and will remain through the Date of
Closing, as hereinafter defined, and until all obligations hereunder to you or
on your behalf have been satisfied: (i) a broker-dealer registered with the
Securities and Exchange Commission (the "SEC") pursuant to the Exchange Act;
(ii) duly licensed as a broker-dealer in the State of Georgia and in those
states set forth on Exhibit A attached hereto; (iii) and are a member in good
standing of the NASD.
(iii) Within the past ten years, neither you nor your
affiliates, or any person directly or indirectly controlling, controlled by or
under common control with you, including any employee:
(a) Has been found by the SEC or any jurisdiction
or any court willfully to have made or caused to be made any statement which
was, at the time and in the light of the circumstances under which it was made,
false and misleading with respect to any material fact, or to have omitted to
state any material fact, which was required to be stated, in any application for
registration or report required to be filed under the federal securities laws or
under the securities laws of any jurisdiction relating to securities, the
conduct of business or registration as a broker, dealer, municipal securities
dealer, or investment advisor or associated person thereof;
(b) Has been convicted of any felony or misdemeanor
(1) involving the purchase or sale of any securities, the taking of a false
oath, the making of a false report, bribery, perjury, burglary or conspiracy to
commit any such offense; (2) arising out of the conduct of the business of a
broker, dealer, municipal securities dealer, investment advisor, bank, insurance
company or fiduciary; (3) involving the larceny, theft, robbery, extortion,
forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent
conversion or misappropriation of funds or securities; or (4) involving the
violation of Section 152, 1341, 1342 or 1343 or Chapter 25 or 47 of Xxxxx 00,
Xxxxxx Xxxxxx Code (concealment of assets, false oaths and claims, or bribery,
in any bankruptcy proceeding; mail fraud, fraud by wire, including telephone,
telegraph, radio or television; counterfeiting, forgery; fraud, false
statements, money laundering); or has pleaded nolo contendere to any such felony
or misdemeanor;
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(c) Is enjoined permanently, or has been enjoined
temporarily, by order, judgment or decree of any court of competent jurisdiction
from acting as an investment advisor, underwriter, broker, dealer or municipal
securities dealer, or as an associated person or employee of any of the
foregoing, or as an affiliated person or employee of any investment company,
bank, or insurance company, or from engaging in or continuing any conduct or
practice in connection with the purchase or sale of any security, or arising out
of any securities or investment advisory activities;
(d) Has been found by the SEC or any jurisdiction
or any court to have violated or to have violated or to have aided, abetted,
counseled, commanded, induced or procured the violation by any other person of
the federal laws, or the laws of any jurisdiction, relating to securities or
relating to the conduct of business as a broker, dealer, municipal securities
dealer, investment advisor or investment company, any rule or regulation under
any of such laws, or any rule of the Municipal Securities Rulemaking Board, or
to have failed reasonably to supervise another person who committed such a
violation or to have been unable to comply with any of the foregoing;
(e) Has been the subject of an order of the SEC
entered pursuant to Section 15(b), l5B(a), 15B(c) of the Securities Exchange Act
of 1934, or Section 203 (e) or (f) of the Investment Advisors Act of 1940 or is
subject to a United States Postal Service false representation order entered
under 39 U.S.C. Section 3005 within the past 5 years or is subject to a
restraining order or preliminary injunction entered under 39 U.S.C. Section 3007
With respect to conduct alleged to have violated 39 U.S.C. Section 3005;
(f) Has been denied membership or registration
with, or participation in, or has been suspended, revoked or expelled from
membership, participation in or registration with any self-regulatory
organization; or has been suspended or barred from being associated with any
member of such self-regulatory organization:
(g) Has been suspended, revoked or expelled from
registration (license) with the SEC or any jurisdiction (or any agency thereof)
as a broker, dealer, investment advisor, securities salesman, or municipal
securities dealer, or has been barred from being associated with a person
engaged in such business;
(h) Has been found to have been a cause of (1) the
denial, suspension, or revocation of any person's membership or participation
in, or registration with the SEC, any jurisdiction (or any agency thereof), or
any self-regulatory organization, (2) any bar or suspension of any person from
being associated with a broker, dealer, municipal securities dealer, or member
of a self-regulatory organization;
(i) Has been the subject of any cease and desist,
desist and refrain, prohibition, or similar order which was issued by the United
States or any jurisdiction arising out of the conduct of the business of a
broker, dealer, municipal securities dealer, or investment advisor; or
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(j) Has been the subject of any order, judgment,
decree or other sanction of a foreign court, foreign exchange, or foreign
governmental or regulatory agency arising out of any securities or investment
advisory activities.
(iv) You have no knowledge of any pending or threatened
claims which would result in any of the events specified in Paragraph 2 B (iii).
(v) You have not made, and will not make, any
representations in connection with the offering and sale of the Units other than
those set forth in the Prospectus or any amendment thereof or supplement
thereto, as approved by the Company, to any person.
(vi) All information furnished to the Company with
respect to you is true and correct and does not omit any material fact required
to make such information not misleading.
(vii) All actions, direct or indirect, by you and your
agents, employees and affiliates in connection with the offer and sale of the
Units pursuant to this Agreement will conform to The Securities Act of 1933 (the
"Act"), to Form SB-2 promulgated thereunder by the Securities and Exchange
Commission, the antifraud provisions of the Act, the antifraud provisions of the
Exchange Act, and to all applicable state securities laws and regulations.
3. COMPENSATION.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby retains you as exclusive sales agent ("Placement Agent") to sell
the Company's Common Stock, and you agree to use your best efforts to effect
such sale. In addition, you further agree to use your best efforts to form and
manage, as Placement Agent and as dealer manager, a group of Selected Dealers
for the purpose of soliciting offers for the purchase of Stock. As compensation
for such services as Placement Agent, the Company agrees that it will pay to you
as a sales commission an amount equal to eight percent (8%) of the aggregate
sales price of the stock sold by you, the Company (the Issuer) or by Selected
Dealers and accepted and confirmed by the Company in all states in which you are
licensed to conduct business as a broker dealer. In addition, you shall also
receive reimbursement of your accountable expenses in an amount of up to one
percent (1%) of the aggregate sales price of the Stock. Next, you will receive
up to one percent (1%) of the aggregate sales price of the Stock for
non-accountable expenses. Such compensation is to be paid to you as set forth in
the "Use of Proceeds" and "Plan of Distribution" sections of the Prospectus and
upon the closing of the offering. You may reallot any or all of the
aforementioned concessions of the offering price of the Stock sold by each
dealer who has signed a Soliciting Dealers Agreement with you at your sole
discretion.
Further, the company hereby grants you Warrants to purchase its
Common Stock in an amount of one Warrant equaling one share of Common Stock for
each ten shares of Common Stock subscribed to in this underwriting. The exercise
price of the Warrants to be equal to 165% of the public offering price of the
company's Common Stock. The Warrants shall
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be exercisable at Capital Growth Management, Inc.'s (CGM's) sole discretion for
a period commencing no sooner than one year from the effective date of this
registration, nor later than four years from the effective date of this
registration. The Company hereby agrees that said Warrants may be assigned at
CGM's sole discretion, subject to applicable securities laws and regulations,
and the Company's execution of this underwriting agreement specifically ratifies
its acceptance to said assignment. The Warrants to be acquired by the Placement
Agent shall be restricted from sale, transfer, assignment or hypothecation for a
period of one year from the effective date of the offering, except to officers
or partners of the Placement Agent and members of the selling group or their
officers or partners.
The Company shall advance to you at the time of the signing of this
Agreement, the sum of $25,000 as an advance payment of accountable "due
diligence" expenses. In the event this offering is terminated prior to the sale
of the minimum offering, you shall be reimbursed only for your actual
accountable out-of-pocket expenses and any portion of the advance on the
accountable expense allowance not accounted for will be promptly refunded to the
Company.
4. TERMINATION OF OFFERING AND ESCROW ARRANGEMENTS.
Appropriate arrangements for placing the funds received from the sale
of the Stock in an escrow account with a bank duly authorized to transact
business in Atlanta, Georgia shall be made by the Company prior to the
commencement of the Offering hereunder. We will promptly provide you copies of
all said documents evidencing said account and provide you monthly statements
through the termination of this offering.
All investors will be instructed to make their checks payable to the
bank escrow agent by the Placement Agent no later than noon of the next business
day following receipt of such check.
This offering shall terminate on if the minimum offering is
not sold by that date. If the minimum offering has been sold by , the
offering may continue until, unless sooner terminated or extended by the
Company, but in no event will the offering continue beyond (the
"Termination Date")
5. SUBSCRIPTION DOCUMENTS.
You agree that you will submit to the Company all subscription
documents provided by the Company, executed in accordance with the Company's
instructions, by all persons desiring to subscribe for Units if provided
hereunder. The Company reserves the right to reject a subscription for good
faith reasons prior to the Termination Date.
6. OBLIGATIONS OF PLACEMENT AGENT LIMITED.
The undertaking by you to sell the Stock does not obligate you to
sell any of the Stock offered. Your services hereunder relate solely to the
offer and sale of the Stock, and you shall have no obligations to prepare, or to
participate in the preparation of, any reports or any returns of the Company.
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7. COVENANTS OF THE COMPANY AND THE PLACEMENT AGENT.
A. The Company covenants and agrees that:
(i) The Company will deliver to you such number of copies of
the Prospectus or any amendment or supplement thereto approved by the Company,
with all exhibits, as you may reasonable request for the purposes contemplated
by the Act.
(ii) If at any time any event occurs as a result of which, in
the opinion of the Company, the Prospectus would include an untrue statement of
material fact or, in view of the circumstances under which they were made, omit
to state any material fact necessary to make the statements therein not
misleading, the Company will notify you thereof (unless the information shall
have been received from you) and will effect the preparation of an amended or
supplemented Prospectus which will correct such statement or omission. The
Company will deliver to you as many copies of such amended or supplemented
Prospectus as you may reasonably request to be delivered to all subscribers.
(iii) After the Date of Closing (which may be prior to but may
not be subsequent to), unless extended by the Company (the "Closing Date) the
Company will admit as shareholders all subscribers of the Stock, accepted by the
Company at its sole discretion, in accordance with the description of the
procedures set forth in the Prospectus and the Articles of Incorporation.
(iv) The Company will endeavor in good faith, in cooperation
with you, prior to the Date of Closing, to "Blue Sky" the offer and sale of the
Stock under the securities laws in such states and jurisdictions as you deem
necessary.
B. You covenant and agree that you and all of your agents,
representatives and employees will:
(i) Comply with all requirements imposed upon you by the
Act, by the Regulations thereunder, and by all applicable state securities laws
and regulations, to permit the continuance of offers and sales of the Stock, in
accordance with the provisions hereof and the Prospectus;
(ii) Offer and/or sell the Stock only to persons who
represent and who you have reason to believe meet the suitability standards of
the National Association of Securities Dealers, Inc. and of the North American
Securities Administrators Association. You will deliver a Prospectus, and any
amendments or supplements thereto, to each offeree at the time such offer is
made;
(iii) Cooperate with the Company to ensure that the offering
and sale of Stock complies with the requirements of the federal securities laws
and the state securities or "Blue Sky" laws of the states or jurisdictions in
which this offering is sold, and you will not
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make an offer or sale of Shares in any jurisdiction without prior written
authorization from Xx. Xxx X. Xxxxx, President of the Company. You will report
periodically to Xx. Xxx X. Xxxxx, President of the Company with respect to the
status of the offering being conducted pursuant to this Agreement.
(iv) Not make an offer of Stock on the basis of any
communications or documents relating to the Company, except by the Prospectus
and the exhibits thereto and documents described or referred to therein and
other information provided by the Company at the request of an offeree;
(v) Obtain a completed Subscription Agreement from each
purchaser to who Stock is sold;
(vi) Return to the Company all surplus copies of the
Prospectus and other offering documents upon termination of the offering,
whether or not the offering closes on the terms and at the time set forth in the
Prospectus;
(vii) Offer the Stock for sale, or solicit offers to
subscribe for or buy the Stock, only in such manner and in such circumstances as
are consistent with "Blue Sky" laws of the jurisdictions you are duly licensed
in;
(viii) Deliver to the Company upon closing of the offering
your certificate to the effect that all your representations and warranties as
set forth herein are true and correct as if made on the Date of Closing, a
schedule setting forth herein are true and correct as if made on the Date of
Closing, a schedule setting forth the identity and state of residence of each
offeree of Units, which shall also indicate thereon each of the purchasers of
the Stock and such other matters as the Company may reasonably request; and
(ix) Promptly transmit to the bank any and all checks
received from investors or from Selected Dealers no later than noon of the next
business day following receipt of such check.
9. INDEMNIFICATION.
A. The Company will indemnify and hold you harmless against any
losses, claims, damages or liabilities which you may suffer insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statement therein in light of the circumstances under which they were made
not misleading; and will reimburse you for any legal or other expenses
reasonably incurred by you in connection with investigating or defending any
such action or claim; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based
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upon any misrepresentation or breach of warranty by you hereunder or an alleged
omission made in the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with information furnished to the Company by
you.
B. You agree to indemnify the Company and hold it harmless
against any losses, claims, damages or liabilities (including, without
limitation, any liabilities to Selected Dealers participating in the offer and
sale of the Stock) to which the Company may become subject, (i) under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
information furnished to us by you; or (ii) under the Act or otherwise, for any
breach of any of the provisions of Paragraph 2(B); or (iii) under the Act or
otherwise, for any unauthorized verbal or written representations made by you,
your agents, employees or affiliates in connection with the offer and sale of
the Units; or (iv) any sale of the Stock by you, your agents, employees or
affiliates in violation of section 4(2) of the Act, Regulation D promulgated
thereunder, the antifraud provisions of the federal securities laws, or any
applicable state securities laws and the antifraud provisions thereof; and to
reimburse us for any legal or other expenses reasonably incurred by us in
connection with the investigation or defense of any such action or claim.
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE SALE AND PAYMENT.
Except as the context otherwise requires, all representations,
warranties and agreements contained in this Agreement shall be deemed to be
representations, warranties and agreements at the Date of Closing; and such
representations, warranties and agreement of you and the Company shall remain
operative and in full force and effect regardless of any investigation made by
your or on your behalf, or any controlling person, or by or on behalf of the
Company or any controlling person, or by or on behalf of the Company or any
controlling person, and shall survive the sale of, and payment for, the Stock.
11. NOTICES.
All notices provided for by this Agreement shall be made in
writing either (i) by actual delivery OF THE NOTICE INTO the hands of the
parties thereunto entitled, or (ii) by the mailing of the notice in the United
States mail to the address, as stated below (or at such other address as may
have been designated by written notice), or the party entitled thereto, by
certified or registered mail, return receipt requested. The notice shall be
deemed to be received in case (i) on the date of its actual receipt by the party
entitled thereto; and, in case (ii) on the date of deposit in the United States
mails.
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All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to you, shall be mailed
or delivered to you at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx #0, Xxxxxxx, XX 00000,
attn. Xxxxxxx X. Xxxxx, and if sent to the Company, shall be mailed or
delivered, to the address in Paragraph 1(B) of this Agreement marked: Attn. Xxx
X. Xxxxx, President.
12. CONSTRUCTION.
This Agreement shall be governed by, subject to, and construed in
accordance with the laws of the State of Georgia.
13. SEVERABILITY.
If any portion of this Agreement shall be held invalid or
inoperative, then, so far as is reasonable and possible, (i) the remainder of
this Agreement shall be considered valid and operative, and (ii) effect shall be
given to the intent manifested by the portion held invalid or inoperative.
14. MULTIPLE COUNTERPARTS.
This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed to be an original, but all of which
constitute, collectively, one and the same agreement; but in making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
15. MODIFICATION OR AMENDMENT.
This Agreement may not be modified or amended except by written
agreement executed by the parties hereto.
16. NUMBER AND GENDER OF WORDS.
Whenever the context so requires, the masculine shall include the
feminine and neuter, and the singular shall include the plural, and conversely.
17. OTHER INSTRUMENTS.
The parties hereto covenant and agree that they will execute such
other and further instruments and documents as are or may become necessary or
convenient to effectuate and carry out this Agreement.
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18. CAPTIONS.
The captions used in this Agreement are for convenience only and
shall not be construed in interpreting this Agreement.
19. PARTIES.
This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto, the controlling persons referred to in Section 10
hereof, and their respective successors, legal representatives and assigns, and
no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this agreement or any
provision herein contained.
20. CLOSING DATE.
This offering shall close on ________________ unless extended by
the Company or such earlier date as 83,334 shares have been sold (the "Closing
Date"). The initial closing shall be upon the receipt into the escrow account of
$500,004.00 from the sale of Shares (the "Initial Closing Date"). The Initial
Closing Date shall be no later than _____________________. If an aggregate of
$500,004.00 from the sale of shares has not been deposited into the escrow
account by the Initial Closing Date, this Offering will be terminated and all
funds returned to investors. Thereafter, closings shall be held in each month
that sales of Stock have been made.
(THE REMAINDER OF THIS PAGE IS LEFT INTERNATIONALLY BLANK)
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21. ENTIRE AGREEMENT.
This Agreement contains the entire understanding between the
parties and supersedes any prior understanding between the parties and
supersedes any prior written or oral agreements between them respecting the
subject matter hereof.
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space below for that purpose and
return this Agreement to the Company and, upon approval and acceptance by the
Company, this letter shall constitute a binding agreement between us.
Very truly yours,
HealthTronics, Inc.
(the "Company")
By: /s/ Xxx X. Xxxxx
--------------------------------------
Xxx X. Xxxxx, President
Accepted:
7-13-98
--------------------------------------
Date
Capital Growth Management, Inc.
(the "Placement Agent")
By:
--------------------------------------
Xxxxxxx X. Xxxxx, President
--------------------------------------
Date of Acceptance
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EXHIBIT "A"
I) States in which Capital Growth Management, Inc. is currently pending
or approved as a Broker/Dealer as of April 01, 0000
Xxxxxxx
Xxxxxxxx
Arizona
California
Colorado
Florida
Georgia
Illinois
Kansas
Maryland
Michigan
Minnesota
Missouri
Mississippi
North Carolina
New Jersey
New York
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
Tennessee
Texas
Virginia
Wisconsin
