Exhibit 10.8
PLACEMENT AGENCY AGREEMENT
This Placement Agency Agreement (this "Agreement") is made and entered
into as of May 17, 2005 (the "Effective Date"), by and between Intraop Medical
Corporation, a Nevada corporation (the "Company"), and Stonegate Securities,
Inc., a Texas corporation ("Stonegate").
WHEREAS, the Company desires to retain Stonegate as its non-exclusive
placement agent, and Stonegate is willing to act in such capacity, in each case
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and Stonegate (each a "Party" and
collectively, the "Parties") hereby agree as follows:
1. RETENTION OF STONEGATE; SCOPE OF SERVICES.
(a) Subject to the terms and conditions set forth herein, the Company
hereby retains Stonegate to act as the non-exclusive placement agent
to the Company during the Contract Period (as defined in Section 2
below), and Stonegate hereby agrees to be so retained.
(b) As the non-exclusive placement agent to the Company, Stonegate will
have the non-exclusive right during the Contract Period to identify
for the Company prospective purchasers, each of whom shall be
accredited investors, as such term is defined in Rule 501 of the
Securities Act of 1933, as amended (the "Securities Act") (such
prospective purchaser being collectively, the "Purchasers" and each
individually, a "Purchaser") in one or more placements (each, a
"Placement" and collectively, the "Placements") of debt and/or equity
securities to be issued by the Company, the type and dollar amount
being as mutually agreed to by the Company and the Purchasers (the
"Securities").
(c) Terms of the Placements shall be as set forth in subscription
documents, including any stock purchase or subscription agreement,
escrow agreement, registration rights agreement, warrant agreement
and/or other documents to be executed and delivered in connection with
each Placement (collectively, the "Subscription Documents"). The
Placements are intended to be exempt from the registration
requirements of the Securities Act, pursuant to Regulation D
("Regulation D") of the rules and regulations of the Securities and
Exchange Commission (the "SEC") promulgated under the Securities Act.
1
(d) Stonegate will act on a best efforts basis and will have no obligation
to purchase any of the Securities offered in any Placement. During the
Contract Period, Stonegate shall have the non-exclusive right to
identify the Purchasers and arrange for all sales of Securities in the
Placements. All sales of Securities in the Placements shall be subject
to the approval of the Company, which approval may be withheld in the
Company's sole discretion.
2. CONTRACT PERIOD AND TERMINATION.
(a) Stonegate shall act as the Company's non-exclusive placement agent
under this Agreement for a period commencing on the Effective Date,
and continuing until terminated by either Party upon 10 days notice to
the other Party (the "Contract Period").
(b) Upon termination, neither party will have any further obligation under
this Agreement, except as provided in Sections 5, 6, 7, 8, 9 and 10
hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
Each of the Parties represents to the other that (i) it has full power and
authority to enter into this Agreement and to perform its obligations
hereunder, (ii) this Agreement is enforceable against such Party in
accordance with its terms, subject to applicable laws governing bankruptcy,
insolvency and creditors' rights generally and (iii) this Agreement does
not conflict with, violate, cause a default, right of termination, or
acceleration (whether through the passage of time or otherwise) under any
contract, agreement, or understanding binding upon such Party or any
subsidiary of such Party.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) Neither the Company nor any affiliate of the Company (as defined in
Rule 501(b) of Regulation D) will sell, offer for sale, or solicit
offers to buy, or otherwise negotiate in respect of any security (as
defined in the Securities Act) of the Company which will be integrated
with the sale of the Securities and cause the Placement to be a deemed
a public offering requiring registration under the Securities Act.
(b) Any and all filings and documents required to be filed in connection
with or as a result of the Placements pursuant to federal and state
securities laws are the responsibility of the Company and will be
filed by the Company, other than NASD or other regulatory filings
required to be made by Stonegate or a particular Purchaser, which
shall be the obligation of Stonegate or such Purchaser, as applicable.
(c) Any press release to be issued by the Company announcing or referring
to any Placement in which Stonegate serves as the placement agent
shall be subject to the prior review of Stonegate, such review not to
be unreasonably withheld or delayed. Stonegate shall be permitted to
publish a tombstone or similar advertisement upon completion of each
Placement identifying itself as the Company's placement agent with
respect thereto, subject to the prior review and approval of the
Company, such review or approval not to be unreasonably withheld or
delayed. This Agreement shall not be filed publicly by the Company or
Stonegate without the prior written consent of Stonegate or the
Company, respectively, unless required by applicable law or
regulation.
2
5. FURNISHING OF COMPANY INFORMATION; CONFIDENTIALITY; OTHER MATTERS.
(a) In connection with Stonegate's activities hereunder on the Company's
behalf, the Company shall furnish Stonegate with all reasonable
information concerning the Company and its operations that Stonegate
deems necessary or appropriate (the "Company Information") and shall
provide Stonegate with reasonable access to the Company's books,
records, officers, directors, employees, accountants and counsel. The
Company acknowledges and agrees that, in rendering its services
hereunder, Stonegate will be using and relying upon the Company
Information without independent verification thereof or independent
appraisal of any of the Company's assets and may, in its sole
discretion, use additional information contained in public reports or
other information furnished by the Company or third parties.
(b) Stonegate agrees that the Company Information will be used solely for
the purpose of performing its services hereunder. Subject to the
limitations set forth in subsection (c) below, Stonegate will keep the
Company Information provided hereunder confidential and will not
disclose such Company Information or any portion thereof, except (i)
to a third party contacted by Stonegate on behalf of, and with the
prior approval of, the Company pursuant hereto who has agreed to be
bound by a confidentiality agreement satisfactory in form and
substance to the Company, or (ii) to any other person for which the
Company's consent to disclose such Company Information has been
obtained.
(c) Stonegate's confidentiality obligations under this Agreement shall not
apply to any portion of the Company Information which (i) at the time
of disclosure to Stonegate or thereafter is generally available to and
known by the public (other than as a result of a disclosure directly
or indirectly by Stonegate in violation of this Agreement); (ii) was
available to Stonegate on a non-confidential basis from a source other
than the Company, provided that such source is not and was not bound
by a confidentiality agreement with the Company; (iii) has been
independently acquired or developed by Stonegate without violating any
of its obligations under this Agreement; or (iv) the disclosure of
which is legally compelled (whether by deposition, interrogatory,
request for documents, subpoena, civil or administrative investigative
demand or other similar process). In the event that Stonegate becomes
legally compelled to disclose any of the Company Information,
Stonegate shall provide the Company with prompt prior written notice
of such requirement so that the Company may seek a protective order or
other appropriate remedy and/or waive compliance with the terms of
this Agreement. Stonegate further agrees that it shall not buy, sell,
transfer, make any short sale of, grant an option for the purchase of,
or enter into any holdings or similar transaction with the same
economic effect as a sale, with respect to any securities of the
Company during such time as it is in possession of material non-public
Company Information.
3
(d) Stonegate acknowledges and agrees that it will: (i) provide each
prospective Purchaser of Securities only with materials supplied to
Stonegate by the Company or otherwise pre-approved by the Company,
including, but not limited to: a placement memorandum, the form of
stock purchase agreement and registration rights agreement and other
related agreements (except that nothing herein shall be construed to
require the Company to approve customary email communications by
Stonegate to actual or prospective Purchasers of the Securities), (ii)
at all times comply with all United States and foreign federal, state,
local and common laws, and all rules, regulations and orders of any
court or government agency, applicable to Stonegate and the
performance of the services hereunder, (iii) comply with all
applicable United States and foreign federal and state securities
laws, (iv) not engage in any acts which would cause the Company to
lose or forfeit the exemption from registration to issue Securities
afforded pursuant to Section 4(2) under the Securities Act or Rule 506
as promulgated under the Securities Act, and (v) use its commercially
reasonable efforts to assist the Company in obtaining complete
documentation from each Purchaser of Securities introduced by
Stonegate to the Company.
(e) The obligations of the Parties under this Section 5 shall survive the
termination of this Agreement for 12 months.
6. FEES AND EXPENSES.
(a) As compensation for services rendered by Stonegate in connection with
the Placements, the Company agrees to pay Stonegate a fee (the "Agency
Fee") of seven percent (7%) of the gross proceeds from the sale of
Securities in the Placements. In the case of any proceeds from the
sale of Securities to those persons or entities listed on Attachment 1
hereto (collectively, the "Excluded ------------- Purchasers") who
elect to participate in the Placement, the Company shall pay Stonegate
an agency fee (the "Reduced Agency Fee") equal to three and one-half
percent (3.5%) of the gross proceeds from the sale of securities to
such Excluded Purchasers. The Agency Fee and the Reduced Agency Fee
shall be paid immediately upon the closing of each sale of Securities
by the Company.
(b) The Company shall also promptly reimburse Stonegate for all reasonable
out-of-pocket expenses incurred by Stonegate and its directors,
officers and employees in connection with the performance of
Stonegate's services under this Agreement, up to an aggregate maximum
of $20,000. Any expenses in excess of an aggregate of $20,000 for
which Stonegate seeks reimbursement from the Company must have the
prior written approval of the Company. Stonegate shall not incur any
reimbursable out-of-pocket expense in excess of $5,000 without the
prior written consent of the Company, such consent not to be
unreasonably withheld. Stonegate will notify the Company before
incurring any travel for the Company and will endeavor to have the
Company direct billed for any such travel costs and expenses, as
practicable. For these purposes, "out-of-pocket expenses" shall
include, but not be limited to, attorneys' fees and costs, long
distance telephone, facsimile, courier, mail, supplies, travel and
similar expenses.
4
(c) Upon closing of the Placement, the Company agrees to issue to
Stonegate a Securities Purchase Warrant (the "Representative's
Warrant") entitling the holder(s) thereof to purchase an amount of
Securities equal to seven percent (7%) of the total number of
Securities sold in the closing for such Placement (three and one-half
percent (3.5%) with respect to Securities sold to Excluded Purchasers)
for a period of five (5) years at an exercise price per share equal to
the price at which the Securities are sold to Purchasers. The
Representative's Warrants shall be immediately exercisable from the
date of the initial closing of the Placement. The Representative's
Warrant shall otherwise be substantially in the form of Exhibit A
attached hereto.
(d) The obligations of the Parties under this Section 6 shall survive the
termination of this Agreement for any reason.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold Stonegate harmless from and
against any and all losses, claims, damages or liabilities (or
actions, including securityholder actions, in respect thereof) related
to or arising out of Stonegate's engagement hereunder or its role in
connection herewith, and will reimburse Stonegate for all reasonable
expenses (including reasonable costs, expenses, awards and counsel
fees and/or judgments) as they are incurred by Stonegate in connection
with investigating, preparing for or defending any such action or
claim, whether or not in connection with pending or threatened
litigation in which Stonegate is a party. The Company will not,
however, be responsible for any claims, liabilities, losses, damages
or expenses which are finally judicially determined to have resulted
primarily from the bad faith, gross negligence or willful misconduct
of Stonegate. The Company also agrees that Stonegate shall not have
any liability to the Company for or in connection with such
engagement, except for any such liability for losses, claims, damages,
liabilities or expenses incurred by the Company that result primarily
from the bad faith, gross negligence or willful misconduct of
Stonegate. In the event that the foregoing indemnity is unavailable
(except by reason of the bad faith or gross negligence of Stonegate),
then the Company shall contribute to amounts paid or payable by
Stonegate in respect of its losses, claims, damages and liabilities in
such proportion as appropriately reflects the relative benefits
received by, and fault of, the Company and Stonegate in connection
with the matters as to which such losses, claims, damages or
liabilities relate, and other equitable considerations. The foregoing
shall be in addition to any rights that Stonegate may have at common
law or otherwise and shall extend upon the same terms to and inure to
the benefit of any director, officer, employee, agent or controlling
person of Stonegate. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any claim which
is subject to this agreement is brought against Stonegate or any other
person entitled to indemnification or contribution under this
subsection (a).
(b) Stonegate agrees to indemnify and hold the Company harmless from and
against any and all losses, claims, damages or liabilities (or
actions, including securityholder actions, in respect thereof) which
are finally judicially determined to have resulted primarily from the
bad faith, gross negligence or willful misconduct of Stonegate, and
will reimburse the Company for all reasonable expenses (including
reasonable costs, expenses, awards and counsel fees and/or judgments)
as they are incurred by the Company in connection with investigating,
preparing for or defending any such action or claim, whether or not in
connection with pending or threatened litigation in which the Company
5
is a party. In the event that the foregoing indemnity is unavailable,
then Stonegate shall contribute to amounts paid or payable by the
Company in respect of its losses, claims, damages and liabilities in
such proportion as appropriately reflects the relative benefits
received by, and fault of, the Company and Stonegate in connection
with the matters as to which such losses, claims, damages or
liabilities relate, and other equitable considerations. The foregoing
shall be in addition to any rights that the Company may have at common
law or otherwise and shall extend upon the same terms to and inure to
the benefit of any director, officer, employee, agent or controlling
person of the Company. Stonegate hereby consents to personal
jurisdiction, service and venue in any court in which any claim, which
is subject to this agreement, is brought against the Company or any
other person entitled to indemnification or contribution under this
subsection (b).
(c) The obligations of the Parties under this Section 7 shall survive the
termination of this Agreement.
8. NON-CIRCUMVENTION.
The Company hereby agrees that, for a period of one year from the end of
the Contract Period or other termination of this Agreement, the Company
will not enter into any agreement, transaction or arrangement with any of
the institutions (including their agents, principals and affiliates and the
accounts and funds which they manage or advise) which Stonegate has
introduced to the Company pursuant to a meeting, telephone call, any
written communication, or by e mail, as prospective purchasers of the
Securities in the Placements, which at the written request of the Company
Stonegate has identified to the Company in writing on or prior to the
termination of the Contract Period (collectively, the "Stonegate
Contacts"), regardless of whether a transaction is consummated with such
prospective purchasers, unless the Company notifies Stonegate in writing of
the agreement, transaction or arrangement, and pays Stonegate a fee equal
to the Agency Fee for securities of the Company sold to Stonegate Contacts.
9. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS
PROVISIONS THEREOF.
10. ARBITRATION.
Stonegate and the Company will attempt to settle any claim or controversy
arising out of this Agreement through consultation and negotiation in good
faith and a spirit of mutual cooperation. Any dispute which the parties
cannot resolve may then be submitted by either party to binding arbitration
in Dallas, Texas under the rules of the American Arbitration Association
for resolution. Nothing in this paragraph will prevent either party from
resorting to judicial proceedings if (a) good faith efforts to resolve the
dispute under these procedures have been unsuccessful or (b) interim relief
from a court is necessary to prevent serious and irreparable injury.
6
11. NO WAIVER.
The failure or neglect of any party hereto to insist, in any one or more
instances, upon the strict performance of any of the terms or conditions of
this Agreement, or waiver by any party of strict performance of any of the
terms or conditions of this Agreement, shall not be construed as a waiver
or relinquishment in the future of such term or condition, but the same
shall continue in full force and effect.
12. SUCCESSORS AND ASSIGNS.
The benefits of this Agreement shall inure to the benefit of the Parties,
their respective successors, assigns and representatives, and the
obligations and liabilities assumed in this Agreement by the Parties shall
be binding upon their respective successors and assigns. This Agreement may
not be assigned by either Party without the express written consent of the
other Party, which consent shall not be unreasonably withheld.
13. NOTICES.
All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be delivered personally
or sent by certified mail, return receipt requested, recognized overnight
delivery service, or facsimile as follows:
If to the Company:
------------------
Intraop Medical Corporation
0000 Xx Xx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Goer, Chief Executive Officer
If to Stonegate:
----------------
Stonegate Securities, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, President
Either Party may change its address or facsimile number set forth above by
giving the other Party notice of such change in accordance with the
provisions of this Section 13. A notice shall be deemed given (a) if by
personal delivery, on the date of such delivery, (b) if by certified mail,
on the date shown on the applicable return receipt, (c) if by overnight
delivery service, on the day after the date delivered to the service, or
(d) if by facsimile, on the date of transmission.
7
14. NATURE OF RELATIONSHIP.
The Parties intend that Stonegate's relationship to the Company and the
relationship of each director, officer, employee or agent of Stonegate to
the Company shall be that of an independent contractor and not as an
employee of the Company or an affiliate thereof. Nothing contained in this
Agreement shall constitute or be construed to be or create a partnership or
joint venture between Stonegate and the Company or their respective
successors or assigns. Neither Stonegate nor any director, officer,
employee or agent of Stonegate shall be considered to be an employee of the
Company by virtue of the services provided hereunder.
15. MISCELLANEOUS
Stonegate's obligations under this Agreement are subject to the following
general conditions:
(a) Stonegate reserves the right to solicit the assistance of outside
dealers ("Dealers") to assist in the offer and sale of the Placements;
provided, however, that any such Dealers agree in writing to be bound
by the terms of the applicable Placement. It is understood that
Stonegate, in its sole discretion, shall be entitled to pay over to
any such Dealers any portion of the compensation received by Stonegate
hereunder. The Company shall have no financial liability for any fees
or expenses of any such Dealers.
16. CAPTIONS.
The Section titles herein are for reference purposes only and do not
control or affect the meaning or interpretation of any term or provision
hereof.
17. AMENDMENTS.
No alteration, amendment, change or addition hereto shall be binding or
effective unless the same is set forth in a writing signed by a duly
authorized representative of each Party.
18. PARTIAL INVALIDITY.
If it is finally determined that any term or provision hereof is invalid or
unenforceable, (a) the remaining terms and provisions hereof shall be
unimpaired, and (b) the invalid or unenforceable term or provision shall be
replaced by a term or provision that is valid and enforceable and that
comes as close as possible to expressing the intention of the invalid or
unenforceable term or provision.
19. ENTIRE AGREEMENT.
This Agreement embodies the entire agreement and understanding of the
Parties and supersedes any and all prior agreements, arrangements and
understandings relating to the matters provided for herein.
20. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be an original, but all of which together shall be considered one and
the same agreement.
8
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first written above by duly authorized representatives of the Company and
Stonegate.
INTRAOP MEDICAL CORPORATION
By: /s/ Xxxxx Xxxxxxxx
Title: President
STONEGATE SECURITIES, INC.
By: /s/ Xxxxxx X. Goer
Title: President
9
