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.
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(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.
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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.
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(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) comp
