1
Exhibit 1.2
PLACEMENT AGREEMENT
THIS PLACEMENT AGREEMENT (this "Agreement") dated as of April 5, 2000, is
made by and between HEALTHBRIDGE, INC., a Texas corporation (the "Issuer"), and
VALORINVEST LTD. (the "Agent").
WHEREAS
A. The Issuer wishes to privately place with purchasers up to
1,000,000 units consisting of one share of common stock and one
common stock purchase warrant (each a "Unit") at a price of U.S.
$0.50 per Unit;
B. The Issuer wishes to appoint the Agent to distribute the Units,
and the Agent is willing to accept such appointment on the terms
and conditions of this Agreement;
THE PARTIES to this Agreement therefore agree:
1. DEFINITIONS
1.1 In this Agreement and the Recitals hereto:
(a) "Act" means the Securities Act of 1933 (United States), as
amended, the regulations and rules made thereunder and all
administrative policy statements, blanket orders, notices,
directions and rulings issued by the Commission;
(b) "Agent Fee" means the commission which is set out in this
Agreement and which is payable by the Issuer to the Agent
in consideration of the services performed by the Agent
under this Agreement;
(c) "Closing" means the day on which the Issuer accepts
Subscription Agreements not previously accepted and
withdraws funds not previously withdrawn by Issuer;
(d) "Commission" means the United States Securities and
Exchange Commission.
(e) "Offering Memorandum" means any private placement
memorandum, and any amendments made to such offering
memorandum, which is required by the Act to be prepared, or
is prepared, by the Issuer in connection with the sale of
any of the Units;
2
(f) "Private Placement" means the offering of the Units on the
terms and conditions set forth in this Agreement or the
Subscription Agreement;
(g) "Purchasers" means the purchasers of Units pursuant to the
Private Placement.
(h) "Subscription Agreement" means the Subscription Agreement
attached hereto as Exhibit A.
2. APPOINTMENT OF AGENT
2.1 The Issuer appoints the Agent as its exclusive agent and the Agent
accepts the appointment and agrees to act as the exclusive agent of the
Issuer to use its commercially reasonable efforts to find and introduce
to the Issuer potential Purchasers to purchase up to 1,000,000 Units, at
a price of $0.50 per Unit, by way of private placement.
3. THE UNITS
3.1 The Units will be one share of common stock and one common stock
purchase warrant of the Issuer as described in the Subscription Agreement
issued and registered in the names of the Purchasers or their nominees.
4. THE AGENT FEE
4.1 In consideration of the services performed by the Agent under this
Agreement, the Issuer agrees to pay to the Agent on each Closing an Agent
Fee equal to 8% of the gross proceeds received by the Issuer from the
sales of the Units on such Closing.
4.2 The Agent Fee will be paid in lawful United States currency.
5. OFFERING RESTRICTIONS
5.1 The Agent agrees that the Issuer will only sell the Units to
persons:
(a) who are not "U.S. persons" as that term is defined under
Regulation S of the Act;
(b) who are "accredited investors" as that term is defined under Rule
501(a) of the Act; and
(c) who are otherwise qualified to purchase the Units as described in
the Subscription Agreement.
5.2 The Agent agrees that at the time any buy order for the Units is
placed by persons introduced by the Agent, the buyer will be outside the
United States, or the Agent and all persons acting on its behalf will
reasonably believe that the buyer is outside the United
2
3
States, and neither the Agent nor any person acting on its behalf will
have knowledge that such transaction has been pre-arranged with a buyer
in the United States.
5.3 Neither the Issuer, the Agent, nor any of their respective
affiliates, nor any person acting on behalf of any of the foregoing, will
offer or sell any of the Securities to U.S. Persons (as defined under
Regulation S of the Act) or in the United States, or undertake any
activity for the purpose of, or that could reasonably be expected to have
the effect of, conditioning the market for the Units in the United
States.
6. OFFERING MEMORANDUM
6.1 The Issuer will ensure that any Offering Memorandum which is
prepared and delivered by the Issuer will conform with all the
requirements of the Act and will be reasonably satisfactory to the Agent.
6.2 The Issuer will deliver to the Agent as soon as possible after the
reference date of this Agreement sufficient commercial copies of any
Offering Memorandum which has been prepared.
6.3 If prior to the Closing, there is any material adverse change in
the Issuer's business, the Issuer will as soon as possible inform the
Agent of the change and prepare an appropriate amendment to the Offering
Memorandum.
6.4 Delivery by the Issuer of an Offering Memorandum will constitute
the Issuer's authorization to the Agent to utilize the Offering
Memorandum in connection with the Private Placement, and will constitute
a representation and warranty by the Issuer that the Offering Memorandum
does not contain a misrepresentation (as defined in the Act), other than
with respect to information supplied by and relating solely to the Agent.
6.5 If the Issuer has delivered an Offering Memorandum to the Agent
which has been prepared in accordance with this Agreement, then the Agent
will, on behalf of the Issuer, deliver a copy of such Offering Memorandum
to each qualified potential purchaser introduced to the Issuer by the
Agent.
7. SUBSCRIPTIONS
7.1 The Agent will obtain from each Purchaser introduced by the Agent,
and deliver to the Issuer on or before each Closing, duly completed and
signed subscriptions in the form of the Subscription Agreement or in such
other form consented to by the Issuer and the Agent and executed by the
Purchaser.
8. TERMINATION
8.1 The Agent may terminate its obligations under this Agreement by
notice in writing to the Issuer at any time before the initial Closing
if:
3
4
(a) a material adverse change in the business of the Issuer has
occurred;
(b) there is a material event, accident, governmental law or
regulation or other occurrence of any nature which, in the
opinion of the Agent, seriously affects or will seriously
affect the financial markets, or the business of the Issuer
or its subsidiaries, if any, or the ability of the Agent to
perform its obligations under this Agreement, or a
Purchaser's decision to purchase the Units;
(c) an inquiry or investigation from or by a governmental
regulatory agency (whether formal or informal) in relation
to the Issuer, or the Issuer's directors, officers or
promoters, which may have a material adverse effect on the
proposed offering, is commenced or threatened in writing;
(d) any order to cease, halt or suspend trading (including an
order prohibiting communications with persons in order to
obtain expressions of interest) in the securities of the
Issuer prohibiting or restricting the Private Placement is
made by a competent regulatory authority and that order is
still in effect; or
(e) the Issuer breaches any material term of this Agreement and
fails to cure such breach within 5 business days after
written notice thereof from the Agent.
9. WARRANTIES, REPRESENTATIONS AND COVENANTS
9.1 The Issuer warrants and represents to and covenants with the Agent
that:
(a) to the Issuer's best knowledge, the authorized and issued
capital of the Issuer are as disclosed in the Offering
Memorandum and the outstanding shares of the Issuer are
fully paid and non-assessable;
(b) the Issuer will reserve or set aside sufficient shares in
its treasury to issue the Units and all such shares will be
duly and validly issued as fully paid and non-assessable;
(c) the Offering Memorandum, if any, subscription form and all
other written or oral representations made by the Issuer to
the Purchaser or potential Purchaser in connection with the
Private Placement will be accurate in all material respects
and will omit no fact, the omission of which will make such
representations misleading or incorrect;
(d) the Issuer has complied in all material respects and will
so comply with the requirements of all applicable corporate
and securities laws and administrative policies and
directions, including, without limitation, the
4
5
Act, in relation to the issue and trading of its securities
and in all matters relating to the Private Placement;
(e) there is not presently, and will not be upon each Closing
any material adverse change in the business of the Issuer
which has not been or will not be fully disclosed to the
Agent;
(f) the issue and sale of the Units by the Issuer and the Agent
does not and will not conflict with, and does not and will
not result in a breach of, any of the terms of its
organizational documents or any material agreement or
instrument to which the Issuer is a party;
(g) there are no judgments against the Issuer or any of its
subsidiaries, if any, which are unsatisfied, nor are there
any consent decrees or injunctions to which the Issuer or
any of its subsidiaries, if any, is subject;
(h) this Agreement has been duly authorized by all necessary
corporate action on the part of the Issuer, and the Issuer
has full corporate power and authority to undertake the
Private Placement;
(i) no order halting or suspending trading in securities of the
Issuer nor prohibiting the sale of such securities has been
issued to and is outstanding against the Issuer or its
directors, officers or promoters and no investigations or
proceedings for such purposes are pending or threatened;
(j) except as disclosed in the Offering Memorandum, no person
has any right, agreement or option, present or future,
contingent or absolute, or any right capable of becoming
such a right, agreement or option, for the issue or
allotment of any unissued shares in the capital of the
Issuer or its subsidiaries, if any, or any other security
convertible into or exchangeable for any such shares, or to
require the Issuer or its subsidiaries, if any, to
purchase, redeem or otherwise acquire any of the issued and
outstanding shares in its capital;
(k) other than the Agent, no person, firm or corporation acting
or purporting to act at the request of the Issuer is
entitled to any brokerage, agency or finder's fee in
connection with the transactions described herein; and
9.2 The Agent warrants and represents to the Issuer that:
(a) it is a valid and subsisting corporation under the law of
the jurisdiction in which it was incorporated;
(b) it is not a "U.S. person" as defined under the Act;
5
6
(c) it is registered under applicable laws to the extent
required by such laws in connection with this Agreement;
and
(d) it will act in compliance with the Act.
10. EXPENSES OF AGENT
10.1 The Issuer will pay all of the expenses of the Private Placement
and all the expenses reasonably incurred by the Agent in connection with
the Private Placement, up to a maximum of two thousand dollars
(U.S.$2,000.00).
10.2 The Issuer will pay the expenses referred to in the previous
Subsection even if the transactions contemplated by this Agreement are
not completed or this Agreement is terminated, unless the failure of
acceptance or completion or the termination is the result of a breach of
this Agreement by the Agent.
10.3 The Agent may, from time to time, render accounts for its expenses
in connection with the Private Placement to the Issuer for payment on or
before the dates set out in the accounts.
11. INDEMNITY
11.1 The Issuer will indemnify the Agent and each of the Agent's
agents, directors, officers and employees (collectively, the "Indemnified
Parties") and save them harmless against all losses, claims, damages or
liabilities:
(a) existing by reason of a material misstatement contained in
the Offering Memorandum, Subscription Agreement or other
written or oral representation made by the Issuer to a
Purchaser or potential Purchaser in connection with the
Private Placement by reason of the omission to state a
material fact necessary to make such statements or
representations not misleading (except for information and
statements supplied by and relating solely to the Agent);
(b) arising directly or indirectly out of any order made by any
regulatory authority based upon an allegation that any such
material misstatement, misrepresentation or omission exists
(except information and statements supplied by and relating
solely to the agent), that trading in or distribution of
any of the Securities is to cease;
(c) resulting from the failure by the Issuer to obtain any
required regulatory approval to the Private Placement
unless the failure to obtain such approval is the result of
a breach of this Agreement by the Agent;
(d) resulting from a material breach by the Issuer of any of
the terms of this Agreement;
6
7
(e) if the Issuer fails to issue and deliver the certificates
representing the Units with the result that any completion
of a sale of the Units does not take place; or
(f) if, following the completion of a sale of any of the
Shares, a determination is made by any competent authority
setting aside the sale, unless that determination arises
out of an act or omission by the Agent.
11.2 If any action or claim is brought against an Indemnified Party in
respect of which indemnity may be sought from the Issuer pursuant to this
Agreement, the Indemnified Party will promptly notify the Issuer in
writing.
11.3 The Issuer will assume the defense of the action or claim,
including the employment of counsel and the payment of all expenses.
11.4 The indemnity provided for in this Section will not be limited or
otherwise affected by any other indemnity obtained by the Indemnified
Party from any other person in respect of any matters specified in this
Agreement and will continue in full force and effect until all possible
liability of the Indemnified Parties arising out of the transactions
contemplated by this Agreement has been extinguished by the operation of
law.
11.5 If indemnification under this Agreement is found in a final
judgment (not subject to further appeal) by a court of competent
jurisdiction not to be available for reason of public policy, the Issuer
and the Indemnified Parties will contribute to the losses, claims,
damages, liabilities or expenses (or actions in respect thereof) for
which such indemnification is held unavailable in such proportion as is
appropriate to reflect the relative benefits to and fault of the Issuer,
on the one hand, and the Indemnified Parties on the other hand, in
connection with the matter giving rise to such losses, claims, damages,
liabilities or expenses (or actions in respect thereof). No person found
liable for a fraudulent misrepresentation (within the meaning of
applicable securities laws) will be entitled to contribution from any
person who is not found liable for such fraudulent misrepresentation.
11.6 To the extent that any Indemnified Party is not a party to this
Agreement, the Agent will obtain and hold the right and benefit of this
section in trust for and on be half of such Indemnified Party.
12. ASSIGNMENT AND SELLING GROUP PARTICIPATION
12.1 The Agent will not assign this Agreement or any of its rights
under this Agreement or, with respect to the Units, enter into any
agreement in the nature of an option of a sub-option unless and until,
for each intended transaction, the Agent has obtained the consent of the
Issuer.
7
8
12.2 The Agent may offer selling group participation in compliance with
applicable laws and consistent with the normal course of the brokerage
business to selling groups of other licensed dealers, brokers and
investments dealers, who may or who may not be offered part of the
Agent's Fee, provided that each such dealer or broker agrees to comply
with this Agreement.
13. NOTICE
13.1 Any notice under this Agreement will be given in writing and must
be delivered, sent by facsimile transmission or mailed by prepaid post
and addressed to the party to which notice is to be given at the address
next to their signatures below, or at another address designated by the
party in writing.
13.2 If notice is sent by facsimile transmission or is delivered, it
will be deemed to have been given at the time of transmission or
delivery.
13.3 If notice is mailed, it will be deemed to have been received 48
hours following the date of mailing of the notice.
13.4 If there is an interruption in normal mail service due to strike,
labor unrest or other cause at or prior to the time a notice is mailed,
the notice will be sent by facsimile transmission or will be delivered.
14. TIME
14.1 Time is of the essence of this Agreement.
15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
15.1 The representations, warranties, covenants and indemnities of the
Issuer and the Agent contained in this Agreement will survive the final
Closing for a period of one (1) year.
16. INUREMENT
16.1 This Agreement shall enure to the benefit of and is binding on the
parties to this Agreement and their successors and permitted assigns.
17. HEADINGS
17.1 The headings in this Agreement are for convenience of reference
only and do not affect the interpretation of this Agreement.
8
9
18. COUNTERPARTS
18.1 This Agreement may be executed in two or more counterparts and may
be delivered by facsimile, each of which will be deemed to be an original
and all of which will constitute one agreement, effective as of the
reference date given above.
19. LAW
19.1 This Agreement is governed by the law of the State of Texas.
This document was executed and delivered as of the date first given
above:
[SIGNATURES ON NEXT PAGE]
9
10
Issuer Address:
Healthbridge, Inc. 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX Xxxxxx X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
By:/s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
President
Agent Address:
ValorInvest Ltd. 00 Xxxx xxx Xxxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
Tel: (000) 00-00-000-0000
Fax: (000) 00-00-000-0000
By:/s/ Xxxxxx Xxxxxxxx
-------------------
Xxxxxx Xxxxxxxx
Director and Secretary
10
