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Exhibit 10.6
MED-TECH SOLUTIONS,
INC.
PLACEMENT AGENT
AGREEMENT
International Capital Partners SA
Rue de Rhone 59
1204 Geneva, Switzerland
June 14, 2007
Ladies and Gentlemen:
This
Placement Agent Agreement (the “ Agreement ”)
confirms the retention by Med-Tech Solutions, Inc., a Nevada
corporation (“ MDTU ” or the “
Company ”), of International Capital Partners SA
(“ ICP ” or the “ Placement
Agent ”; the Company and ICP shall be collectively
referred to as the “ Parties ”), to act as the
exclusive sales agent, on a best efforts basis, in connection with
the Placement (as defined below) for MDTU, on the terms set forth
below.
MDTU
proposes to offer and sell in a Private Placement Offering (the
“ PPO ” or the “ Placement ”)
shares of common stock of MDTU, $0.001 par value per share (the
“ Common Stock ” or the “ Shares
”), having an aggregate purchase price (“ Purchase
Price ”) of up to $65,000,000. The PPO offering
will be made on a best efforts, $38,500,000 minimum (the
“Minimum Offering Amount), $65,000,000 maximum basis (the
“Maximum Offering Amount). The Shares will be offered
and sold in accordance with Regulation S of the Securities Act of
1933, as amended (the “ 1933 Act ”), and Rule
903(b)(3) promulgated thereunder, although the Company reserves the
right to expand the Placement, at some future time, to include
offers and sales, to U.S. Persons (as such term is defined in the
1933 Act), that comply with Section 4(2) and/or Rule 506 of
Regulation D under the 1933 Act. ICP will act as exclusive
Placement Agent for the Shares. The minimum subscription for
each subscriber to the Placement shall be $70,000 in Shares,
subject to the right of the Company in its sole discretion to
accept subscriptions for a lesser amount.
The
Purchase Price per Share shall be $0.90.
The Private
Placement Memorandum to be used in connection with the PPO (the
“ Memorandum ”), as it may be amended or
supplemented from time to time, and the forms of the Subscription
Agreement (the “ Subscription Agreement ”), and
Confidential Prospective Purchaser Questionnaire (the “
Questionnaire ”) to be entered into by and between the
Company and each subscriber for the Placement (the “
Subscribers ”) and the exhibits which are part of the
Memorandum, Subscription Agreement, and Questionnaire are
collectively referred to herein as the “ Offering
Documents .” The Offering Documents, together with (i)
this Agreement, (ii) the Escrow Agreement (as defined in
Section (c)(iv)(vi)(B)(ggg hereof),
and (iii) any exhibits, schedules, supplements and appendices which
are part of the Offering Documents or this Agreement are
collectively referred to herein as the “ Transaction
Documents .”
The Company will deliver to ICP a reasonable number
of copies of the Transaction Documents in form and substance
satisfactory to ICP and its counsel.
Each
Subscriber will be required to deliver, among other things,
executed copies of the Subscription Agreement, and the
Questionnaire which shall include, among other things,
representations by the Subscriber to the Company and the Placement
Agent, that such Subscriber has received and reviewed the
Company’s SEC filings and the Acquisition Agreement dated
March 26, 2007, as amended June __, 2007 (the “
Acquisition Agreement ”) entered into by and among the
Company, The Four Rivers BioEnergy Company, Inc., a Kentucky
corporation (“ Four Rivers ”) and the
shareholders of Four Rivers, annexed as Exhibit 10.1 to the Current
Report filed by the Company with the SEC on Form 8-K on April 3,
2007 (the “ Acquisition ”). The Company shall
provide to each Subscriber a copy of the Acquisition Agreement and
amendment in order to disclose the material terms of the
Company’s intended acquisition of the remaining 85% of the
entire authorized share capital of Four Rivers. The Subscription
Agreement and the Questionnaire shall include, among other things,
representations by the Subscriber to the Company and the Placement
Agent, of such Subscriber’s ability to participate in the
Placement as is reasonably deemed necessary by counsel to the
Company and the Placement Agent, including but not limited to,
representations by each Subscriber that such Subscriber is not
deemed to be U.S. Person pursuant to Regulation S and that such
person is an “accredited investor” under Regulation D
promulgated under the 1933 Act. The Subscription Agreement
shall include, among other things, a representation that the
Subscriber will not offer or sell the Shares for a period of twelve
months from closing and that thereafter the Subscriber will not
offer or sell the Shares except pursuant to an effective
Registration Statement, in compliance with Regulation S, or in
compliance with another exemption from registration under the 1933
Act.
1.
Appointment of Placement Agent.
ICP is
hereby appointed as exclusive placement agent of the Company
(subject to ICP’s right to have foreign dealers (“
Selected Dealers ”) participate in the Placement)
during the “PPO Period” (defined below) for the
purposes of assisting the Company in finding qualified Subscribers.
The offering period for the PPO (the “ PPO
Period ”) shall commence on the day the Offering
Documents are first made available to the Placement Agent by the
Company for delivery in connection with the PPO, which is expected
to be on or about June 14, 2007 (the “ Delivery Date
” or the “ Commencement Date ”) and shall
continue until the earlier to occur of: (i) the sale of all of the
Shares, or (ii) the close of business on August 26, 2007. The
day that the PPO Period expires is hereinafter referred to as the
“ PPO Termination Date . The PPO Termination
Date may be further extended for up to an additional 30 days by
mutual agreement of ICP and the Company.
(a)
Subject to
the performance by the Company of all of its obligations to be
performed under this Agreement and to the completeness and accuracy
of all representations and warranties of the Company contained in
this Agreement, the Placement Agent hereby accepts such agency and
agrees to use its best efforts to assist the Company in finding
qualified Subscribers. It is understood that the Placement
Agent has no commitment to sell the Shares. ICP’s
agency hereunder is not terminable by the Company except upon
termination of the PPO Offering Period.
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(b)
Subscriptions for Shares shall be evidenced by the execution by
Subscribers of a Subscription Agreement and Questionnaire. No
Subscription Agreement shall be effective unless and until it is
accepted and countersigned by the Company. The Placement Agent or
the Company shall not have any obligation to independently verify
the accuracy or completeness of any information contained in any
Subscription Agreement or the authenticity, sufficiency, or
validity of any check delivered by any prospective Subscriber in
payment for Shares.
(c)
The
Placement Agent and/or its affiliates may be Subscribers in the
Placement; provided that said Placement Agent and/or its affiliates
satisfy all of the conditions and provide appropriate
representations set forth in the Transaction Documents and inform
the Company of their intent to be a Subscriber in the Placement at
least 15 days prior to the PPO Termination Date.
2.
Representations and Warranties of the Company. Except
as set forth in the Transaction Documents or in a Disclosure
Schedule attached hereto, the Company represents and warrants to
the Placement Agent and each Selected Dealer, if any, as
follows:
(a)
Securities Law Compliance . The offer, offer for sale,
and sale of the Shares have not been registered with the United
States Securities and Exchange Commission (the “SEC”).
The Shares are to be offered, offered for sale and sold in
reliance upon the exemptions from the registration requirements of
Section 5 of the 1933 Act. Except as the Placement may be
expanded in the future to include offers and sales to US Persons
made in compliance with Section 4(2) and/or Rule 506 of Regulation
D under the 1933 Act, the Company and the Placement Agent will
conduct the Placement in compliance with the requirements of
Regulation S under the 1933 Act and Rule 903(b)(3) thereof.
The Company will prepare the Offering Documents. None
of the representations or warranties of the Company contained in
this Agreement or any information appearing in any of the
Transaction Documents contains, or on or prior to Closing (as
defined in Section 3(a) hereof) will contain, any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
in which they were made, not misleading. If at any time prior
to the completion of the Placement or other termination of this
Agreement any event shall occur as a result of which it might
become necessary to amend or supplement the Offering Documents so
that they do not include any untrue statement of any material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances then
existing, not misleading, the Company will promptly notify the
Placement Agreement and will supply the Placement Agreement with
amendments or supplements correcting such statement or omission.
The Company will also provide the Placement Agent for
delivery to all offerees and purchasers and their representatives,
if any, any information, documents and instruments which the
Placement Agent deems reasonably necessary to comply with
applicable securities laws, subject to the non-disclosure
obligations of the offerees reasonably required by the Company.
(b)
Organization . The Company is duly organized and
validly existing under the laws of the jurisdiction in which it was
organized, and has the requisite power and authorization to own its
properties and to carry on its business as now being conducted.
The Company is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect. As used in this Agreement,
“Material Adverse Effect” means any event or change in
circumstance, whether or not directly or indirectly caused by
management or arising independently of management’s control,
that has or could reasonably be deemed to have, a material adverse
effect on the business, properties, assets, operations, results of
operations, financial condition or prospects of the Company or on
the transactions contemplated hereby, or on the other Transaction
Documents or the agreements and instruments to be entered into in
connection herewith or therewith, or on the authority or ability of
the Company to perform its obligations under the Transaction
Documents.
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(c)
SEC
Documents: Financial Statements . The Company has
filed all reports, schedules, forms, statements and other documents
currently required to be filed by it with the SEC under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (all of the foregoing filed prior to the date hereof or
amended after the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to as
the “SEC Documents”). The Company has delivered
to ICP, or made available through the SEC’s website at
http://www.sec.gov., true and complete copies of the SEC Documents.
As of their respective dates, the financial statements of the
Company disclosed in the SEC Documents (the “Financial
Statements”) complied as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such
Financial Statements or the notes thereto, or (ii) in the case of
unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and, fairly
present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
To the best of the Company’s knowledge, no other
information provided by or on behalf of the Company to ICP which is
not included in the SEC Documents, including, without limitation,
information referred to in the other Transaction Documents,
contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(d)
10(b)-5 . The SEC Documents do not include any untrue
statements of material fact, nor do they omit to state any material
fact required to be stated therein necessary to make the statements
made, in light of the circumstances under which they were made, not
misleading.
(e)
Absence
of Changes . Except as set forth on Schedule 2(e) and/or
in the SEC Documents, since the date (the “Balance Sheet
Date”) of the most recent balance sheet (the “Balance
Sheet”) included in the SEC Documents and except as set forth
on Schedule 2(e), the Company has not sustained or incurred any of
the following events which would have individually or in the
aggregate a Material Adverse Effect on the Company: (i) incurred
any debts, obligations or liabilities, absolute, accrued,
contingent or otherwise, whether due or to become due, except
current liabilities incurred in the usual and ordinary course of
business and consistent with past practices, (ii) made or suffered
any material changes in its contingent obligations by way of
guaranty, endorsement (other than the endorsement of checks for
deposit in the usual and ordinary course of business), indemnity,
warranty or otherwise, (iii) discharged or satisfied any material
liens other than those securing, or paid any obligation or
liability other than, current liabilities shown on the Balance
Sheet, and current liabilities incurred since the Balance Sheet
Date, in each case in the usual and ordinary course of business and
consistent with past practices, (iv) mortgaged, pledged or
subjected to lien any of its material assets, tangible or
intangible, (v) sold, transferred or leased any of its material
assets except in the usual and ordinary course of business and
consistent with past practices, (vi) cancelled or compromised any
debt or claim, or waived or released any right, of material value
except in the usual and ordinary course of business and consistent
with past practices, (vii) suffered any physical damage,
destruction or loss (whether or not covered by insurance)
materially adversely affecting the properties or business of the
Company, (viii) entered into any material transaction other than in
the usual and ordinary course of business except for this
Agreement, the other Transaction Documents and the related
agreements referred to herein and therein, (ix) encountered any
material labor difficulties or labor union organizing activities,
(x) made or granted any wage or salary increase or entered into any
employment agreement other than in the ordinary course of business,
(xi) issued or sold any shares of capital stock or other securities
or granted any options with respect thereto, or modified any equity
security of the Company, (xii) declared or paid any dividends on or
made any other distributions with respect to, or purchased or
redeemed, any of its outstanding equity securities, (xiii) suffered
or experienced any change in, or condition affecting, its condition
(financial or otherwise), properties, assets, liabilities, business
operations, or results of operations other than changes, events or
conditions in the usual and ordinary course of its business and
consistent with past practices, having (either by itself or in
conjunction with all such other changes, events and conditions) a
Material Adverse Effect, (xiv) made any change in the accounting
principles, methods or practices followed by it or depreciation or
amortization policies or rates theretofore adopted, or (xv) entered
into any agreement, or otherwise obligated itself, to do any of the
foregoing.
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(f)
Litigation . Except as disclosed in the SEC Documents,
there is no material action, suit, investigation, customer
complaint, claim or proceeding at law or in equity by or before any
arbitrator, court, governmental instrumentality or agency,
self-regulatory organization or body or public board now pending
or, to the knowledge of the Company, threatened against the Company
or any of the officers or directors of the Company in their
capacities as such (or basis therefor known to the Company), the
adverse outcome of which would have a Material Adverse Effect. To
its knowledge, the Company is not subject to any judgment, order,
writ, injunction or decree of any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign which have a Material Adverse
Effect.
(g)
Non-Defaults; Non-Contravention . The Company is not in
violation of or in default under, nor will the execution and
delivery of this Agreement or any of the Transaction Documents or
consummation of the transactions contemplated herein or therein
result in a violation of or constitute a default in the performance
or observance of any obligation under: (i) its Articles of
Incorporation, or its By-laws; or (ii) any indenture, mortgage,
contract, material purchase order or other agreement or instrument
to which the Company is a party or by which it or its property is
bound, where such violation or default would have a Material
Adverse Effect; or (iii) any material order, writ, injunction or
decree of any court of any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, where such violation or
default would have a Material Adverse Effect, and to the
Company’s knowledge, there exists no condition, event or act
which constitutes, nor which after notice, the lapse of time or
both, could constitute a default under any of the foregoing, which
in either case would have a Material Adverse Effect.
(h)
Taxes . Except as set forth on Schedule 2(h), the
Company has filed all Federal, state, local and foreign tax returns
which are required to be filed by it or otherwise met its
disclosure obligations to the relevant agencies and all such
returns are true and correct in all material respects. The Company
has paid or adequately provided for all tax liabilities of the
Company as reflected on such returns or pursuant to any assessments
received by it or which it is obligated to withhold from amounts
owing to any employee, creditor or third party. The tax returns of
the Company have never been audited by any state, local or Federal
authorities. The Company has not waived any statute of
limitations with respect to taxes or agreed to any extension of
time with respect to any tax assessment or deficiency.
(i)
Compliance With Laws; Licenses, Etc . The Company has
not received notice of any violation of or noncompliance with any
Federal, state, local or foreign, laws, ordinances, regulations and
orders applicable to its business which has not been cured, the
violation of, or noncompliance with which, would have a Material
Adverse Effect.
(j)
Authorization of Agreement, Etc . The Company has the
requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the other Transaction
Documents. The execution and delivery of the Transaction Documents
by the Company and the consummation by the Company of the
transactions contemplated by the Transaction Documents, including
without limitation the issuance of the Shares, have been duly
authorized by the Company’s Board of Directors (the
“Board”) and no further consent or authorization is
required by the Company, the Board or the Company’s
stockholders. The Transaction Documents, when executed, will
have been duly executed and delivered by the Company, and will
constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally,
the enforcement of creditors’ rights and remedies.
(k)
Authorization of the Shares . The issuance, sale and
delivery of the Shares, shall have been duly authorized by all
requisite corporate action of the Company. When issued, sold
and delivered in accordance with the Transaction Documents for the
consideration set forth therein, the Shares will be duly executed,
issued and delivered, will be free and clear of all liens,
encumbrances and claims, and will constitute valid and legal
obligations of the Company enforceable in accordance with their
respective terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating
to, or affecting generally, the enforcement of creditors’
rights and remedies and, in each case, will not be subject to
preemptive or any other similar rights of the stockholders of the
Company or others which rights except as set forth herein or which
shall not have been waived prior to the closing of the
Placement.
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(l)
Exemption from Registration . Assuming (i) the
accuracy of the information provided by the respective Subscribers
in the Offering Documents and (ii) that the Placement Agent has
complied in all material respects with this Agreement and the
provisions of Regulation S promulgated under the 1933 Act, the
offer and sale of the Shares in the Placement pursuant to the terms
of this Agreement will be exempt from the registration requirements
of the 1933 Act and the rules and regulations promulgated
thereunder.
(m)
Brokers . Neither the Company nor any of its officers,
directors, employees or stockholders has employed any broker or
finder in connection with the transactions contemplated by this
Agreement other than the Placement Agent and Selected Dealers.
(n)
No
Integrated Offering . None of the Company, any of its
affiliates, and any person acting on its behalf has, directly or
indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under circumstances that would
require registration of any of the Shares under the 1933 Act or
cause the Placement to be integrated with prior offerings by the
Company for purposes of the 1933 Act or any applicable stockholder
approval provisions, including without limitation, under the rules
and regulations of any exchange or automated quotation system on
which any of the securities of the Company is currently listed or
designated. None of the Company, its affiliates and any
person acting on its behalf will take any action or steps referred
to in the preceding sentence that would require registration of any
of the Shares under the 1933 Act or cause the Placement to be
integrated with other offerings.
(o)
Application of Takeover Protections; Rights Agreement .
Except as set forth on Schedule 2(o), the Company and the
Board have not adopted any poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision
and have not taken any action to render inapplicable any control
share acquisition or business combination which is or could become
applicable as a result of the transactions contemplated by this
Agreement. The Company has not adopted a shareholder rights
plan or similar arrangement relating to accumulations of beneficial
ownership of Common Stock or a change in control of the
Company.
(p)
Right of
First Refusal . Other than ICP, no person, firm or other
business entity is a party to any agreement, contract or
understanding, written or oral, entitling such party to a right of
first refusal with respect to offerings by the Company. From
the date hereof until such time that the Company shall have raised
$129,000,000 (net of expenses) from sales of its Common Stock and
other equity securities, ICP shall have a right of first refusal to
act as the Company’s exclusive placement agent with respect
to all Common Stock or other equity offerings proposed to be
conducted by the Company. ICP shall have 30 calendar days
from the date of its receipt of written notice from the Company to
agree to act as the Company’s excusive placement agent on
terms to be negotiated by the Company and ICP in good faith.
In the event ICP declines to agree to act as the
Company’s exclusive placement agent within such 30 calendar
day period, for Company will be free to negotiate the offering with
other placement agents on terms no more favorable than those
offered by it to ICP. If the Company wishes to negotiate the
offering with other placement agents on different terms or terms
more favorable than those offered to ICP, it must notify ICP
thereafter in writing and ICP will then have 15 calendar days from
the date of its receipt of such written notice to determine whether
it wishes to act as exclusive placement agent for the offering
under the new terms. In the event ICP still declines to act
as the Company’s exclusive placement agent, the Company will
be free to enter into an agreement with such other placement
agents.
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(q)
Foreign
Corrupt Practices . Neither the Company, nor any
director, officer, agent, employee or other person acting on behalf
of the Company has, in the course of its actions for, or on behalf
of, the Company, (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds, (ii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended, or (iii) made any unlawful bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
(r)
Capitalization . As at the date
hereof, the authorized capital for the Company consists of
500,000,000 shares of Common Stock, par value $0.001 per share, of
which 106,750,000 shares are presently issued and outstanding and
100,000,000 shares of Preferred Stock, par value $0.001 per share,
of which no shares are presently issued and outstanding. As
at the date hereof, the Company has not granted any stock options
or common stock purchase warrants and no other secur
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