Exhibit 10.9
PACER HEALTH CORPORATION
PLACEMENT AGENT AGREEMENT
Dated as of: December 26, 2003
Newbridge Securities
Corporation
1451 Cypress Creek Road,
Suite 204
Fort Lauderdale, Florida
33309
Ladies and
Gentlemen:
The undersigned, Pacer Health Corporation, a Florida corporation
(the
"Company"), hereby agrees
with Newbridge Securities Corporation (the "Placement
Agent") and Cornell Capital
Partners, LP, a Delaware Limited Partnership (the
"Investor"), as
follows:
1. Offering. The Company hereby engages the Placement Agent to act
as
its exclusive placement agent
in connection with the Standby Equity Distribution
Agreement dated the date
hereof (the "Standby Equity Distribution Agreement"),
pursuant to which the Company
shall issue and sell to the Investor, from time to
time, and the Investor shall
purchase from the Company (the "Offering") up to
Ten Million Dollars
($10,000,000) of the Company's common stock (the
"Commitment
Amount"), par value $0.0001
per share (the "Common Stock"), at price per share
equal to the Purchase Price,
as that term is defined in the Standby Equity
Distribution Agreement. The
Placement Agent services shall consist of reviewing
the terms of the Standby
Equity Distribution Agreement and advising the Company
with respect to those
terms.
All capitalized terms used herein and not otherwise defined
herein
shall have the same meaning
ascribed to them as in the Standby Equity
Distribution Agreement. The
Investor will be granted certain registration rights
with respect to the Common
Stock as more fully set forth in the Registration
Rights Agreement between the
Company and the Investor dated the date hereof (the
"Registration Rights
Agreement"). The documents to be executed and delivered
in
connection with the Offering,
including, but not limited, to the Company's
latest Quarterly Report on
Form 10-QSB as filed with the United States
Securities and Exchange
Commission, this Agreement, the Standby Equity
Distribution Agreement, the
Registration Rights Agreement, and the Escrow
Agreement dated the date
hereof (the "Escrow Agreement"), are referred to
sometimes hereinafter
collectively as the "Offering Materials." The Company's
Common Stock purchased by the
Investor hereunder is sometimes referred to
hereinafter as the
"Securities." The Placement Agent shall not be obligated
to
sell any
Securities.
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2. Compensation.
A. Upon the execution of this Agreement, the Company shall issue
to
the Placement Agent or its
designee shares of the Company's Common Stock in an
amount equal to Ten Thousand
Dollars ($10,000) divided by the Closing Bid Price
of the Company's Common Stock
on the date hereof (the "Placement Agent's
Shares"). The Placement Agent
shall be entitled to "piggy-back" registration
rights, which shall be
triggered upon registration of any shares of Common
Stock
by the Investor with respect
to the Placement Agent's Shares pursuant to the
Registration Rights Agreement
dated the date hereof.
3. Representations, Warranties and Covenants of the Placement
Agent.
A. The Placement Agent represents, warrants and covenants
as
follows:
(i) The Placement Agent has the necessary power to enter
into
this Agreement and to
consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Placement Agent of
this
Agreement and the
consummation of the transactions contemplated herein will
not
result in any violation of,
or be in conflict with, or constitute a default
under, any agreement or
instrument to which the Placement Agent is a party or by
which the Placement Agent or
its properties are bound, or any judgment, decree,
order or, to the Placement
Agent's knowledge, any statute, rule or regulation
applicable to the Placement
Agent. This Agreement when executed and delivered by
the Placement Agent, will
constitute the legal, valid and binding obligations of
the Placement Agent,
enforceable in accordance with their respective terms,
except to the extent that (a)
the enforceability hereof or thereof may be
limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
from time to time in effect
and affecting the rights of creditors generally, (b)
the enforceability hereof or
thereof is subject to general principles of equity,
or (c) the indemnification
provisions hereof or thereof may be held to be in
violation of public
policy.
(iii) Upon receipt and execution of this Agreement, the
Placement Agent will promptly
forward copies of this Agreement to the Company or
its counsel and the Investor
or its counsel.
(iv) The
Placement Agent will not intentionally take any action
that it reasonably believes
would cause the Offering to violate the provisions
of the Securities Act of
1933, as amended (the "1933 Act"), the Securities
Exchange Act of 1934 (the
"1934 Act"), the respective rules and regulations
promulgated thereunder (the
"Rules and Regulations") or applicable "Blue Sky"
laws of any state or
jurisdiction.
(v) The Placement Agent is a member of the National
Association
of Securities Dealers, Inc.,
and is a broker-dealer registered as such under the
1934 Act and under the
securities laws of the states in which the Securities
will be offered or sold by
the Placement Agent unless an exemption for such
state registration is
available to the Placement Agent. The Placement Agent is
in material compliance with
the rules and regulations applicable to the
Placement Agent generally and
applicable to the Placement Agent's participation
in the Offering.
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4. Representations and Warranties of the Company.
A. The Company represents and warrants as follows:
(i) The execution, delivery and performance of each of
this
Agreement, the Standby Equity
Distribution Agreement, the Escrow Agreement, and
the Registration Rights
Agreement has been or will be duly and validly
authorized by the Company and
is, or with respect to this Agreement, the Standby
Equity Distribution
Agreement, the Escrow Agreement, and the Registration
Rights
Agreement will be, a valid
and binding agreement of the Company, enforceable in
accordance with its
respective terms, except to the extent that (a) the
enforceability hereof or
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or
similar laws from time to time in effect and
affecting the rights of
creditors generally, (b) the enforceability hereof or
thereof is subject to general
principles of equity or (c) the indemnification
provisions hereof or thereof
may be held to be in violation of public policy.
The Securities to be issued
pursuant to the transactions contemplated by this
Agreement and the Standby
Equity Distribution Agreement have been duly
authorized and, when issued
and paid for in accordance with this Agreement, the
Equity Line of Agreement and
the certificates/instruments representing such
Securities, will be valid and
binding obligations of the Company, enforceable in
accordance with their
respective terms, except to the extent that (1) the
enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws
from time to time in effect and affecting the rights
of creditors generally, and
(2) the enforceability thereof is subject to general
principles of equity. All
corporate action required to be taken for the
authorization, issuance and
sale of the Securities has been duly and validly
taken by the
Company.
(ii) The Company has a duly authorized, issued and
outstanding
capitalization as set forth
in the Standby Equity Distribution Agreement. The
Company is not a party to or
bound by any instrument, agreement or other
arrangement providing for it
to issue any capital stock, rights, warrants,
options or other securities,
except for this Agreement, the agreements described
herein and as described in
the Standby Equity Distribution Agreement, dated the
date hereof and the
agreements described therein. All issued and outstanding
securities of the Company,
have been duly authorized and validly issued and are
fully paid and
non-assessable; the holders thereof have no rights of
rescission
or preemptive rights with
respect thereto and are not subject to personal
liability solely by reason of
being security holders; and none of such
securities were issued in
violation of the preemptive rights of any holders of
any security of the
Company.
(iii) The Common Stock to be issued in accordance with
this
Agreement and the Standby
Equity Distribution Agreement has been duly authorized
and, when issued and paid for
in accordance with this Agreement and the Standby
Equity Distribution
Agreement, the certificates/instruments representing
such
Common Stock will be validly
issued, fully-paid and non-assessable; the holders
thereof will not be subject
to personal liability solely by reason of being such
holders; such Securities are
not and will not be subject to the preemptive
rights of any holder of any
security of the Company.
(iv) The Company has good and marketable title to, or valid
and
enforceable leasehold estates
in, all items of real and personal property
necessary to
conduct
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its business (including,
without limitation, any real or personal property
stated in the Offering
Materials to be owned or leased by the Company), free
and
clear of all liens,
encumbrances, claims, security interests and defects of
any
material nature whatsoever,
other than those set forth in the Offering Materials
and liens for taxes not yet
due and payable.
(v) There is no litigation or governmental proceeding
pending
or, to the best of the
Company's knowledge, threatened against, or involving
the
properties or business of the
Company, except as set forth in the Offering
Materials.
(vi) The Company has been duly organized and is validly
existing as a corporation in
good standing under the laws of the State of
Delaware. Except as set forth
in the Offering Materials, the Company does not
own or control, directly or
indirectly, an interest in any other corporation,
partnership, trust, joint
venture or other business entity. The Company is duly
qualified or licensed and in
good standing as a foreign corporation in each
jurisdiction in which the
character of its operations requires such
qualification or licensing
and where failure to so qualify would have a material
adverse effect on the
Company. The Company has all requisite corporate power
and
authority, and all material
and necessary authorizations, approvals, orders,
licenses, certificates and
permits of and from all governmental regulatory
officials and bodies
(domestic and foreign) to conduct its businesses (and
proposed business) as
described in the Offering Materials. Any disclosures in
the Offering Materials
concerning the effects of foreign, federal, state and
local regulation on the
Company's businesses as currently conducted and as
contemplated are correct in
all material respects and do not omit to state a
material fact. The Company
has all corporate power and authority to enter into
this Agreement, the Standby
Equity Distribution Agreement, the Registration
Rights Agreement, and the
Escrow Agreement, to carry out the provisions and
conditions hereof and
thereof, and all consents, authorizations, approvals and
orders required in connection
herewith and therewith have been obtained. No
consent, authorization or
order of, and no filing with, any court, government
agency or other body is
required by the Company for the issuance of the
Securities or execution and
delivery of the Offering Materials except for
applicable federal and state
securities laws. The Company, since its inception,
has not incurred any
liability arising under or as a result of the
application
of any of the provisions of
the 1933 Act, the 1934 Act or the Rules and
Regulations.
(vii) There has been no material adverse change in the
condition or prospects of the
Company, financial or otherwise, from the latest
dates as of which such
condition or prospects, respectively, are set forth in
the Offering Materials, and
the outstanding debt, the property and the business
of the Company conform in all
material respects to the descriptions thereof
contained in the Offering
Materials.
(viii) Except as set forth in the Offering Materials,
the
Company is not in breach of,
or in default under, any term or provision of any
material indenture, mortgage,
deed of trust, lease, note, loan or Standby Equity
Distribution Agreement or any
other material agreement or instrument evidencing
an obligation for borrowed
money, or any other material agreement or instrument
to which it is a party or by
which it or any of its properties may be bound or
affected. The Company is not
in violation of any provision of its charter or
by-laws or in violation of
any franchise, license, permit, judgment, decree or
order, or in violation of any
material statute, rule or regulation. Neither the
execution and delivery of the
Offering Materials nor the issuance and sale or
delivery of the Securities,
nor the consummation of any of the
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transactions contemplated in
the Offering Materials nor the compliance by the
Company with the terms and
provisions hereof or thereof, has conflicted with or
will conflict with, or has
resulted in or will result in a breach of, any of the
terms and provisions of, or
has constituted or will constitute a default under,
or has resulted in or will
result in the creation or imposition of any lien,
charge or encumbrance upon
any property or assets of the Company or pursuant to
the terms of any indenture,
mortgage, deed of trust, note, loan or any other
agreement or instrument
evidencing an obligation for borrowed money, or any
other agreement or instrument
to which the Company may be bound or to which any
of the property or assets of
the Company is subject except (a) where such
default, lien, charge or
encumbrance would not have a material adverse effect on
the Company and (b) as
described in the Offering Materials; nor will such
action
result in any violation of
the provisions of the charter or the by-laws of the
Company or, assuming the due
performance by the Placement Agent of its
obligations hereunder, any
material statute or any material order, rule or
regulation applicable to the
Company of any court or of any foreign, federal,
state or other regulatory
authority or other government body having jurisdiction
over the Company.
(ix) Subsequent to the dates as of which information is
given
in the Offering Materials,
and except as may otherwise be indicated or
contemplated herein or
therein and the securities offered pursuant to the
Securities Purchase Agreement
dated the date hereof, the Company has not (a)
issued any securities or
incurred any liability or obligation, direct or
contingent, for borrowed
money, or (b) entered into any transaction other than
in the ordinary course of
business, or (c) declared or paid any dividend or made
any other distribution on or
in respect of its capital stock. Except as
described in the Offering
Materials, the Company has no outstanding obligations
to any officer or director of
the Company.
(x) There are no claims for services in the nature of a
finder's or origination fee
with respect to the sale of the Common Stock or any
other arrangements,
agreements or understandings that may affect the
Placement
Agent's compensation, as
determined by the National Association of Securities
Dealers, Inc.
(xi) The Company owns or possesses, free and clear of all
liens
or encumbrances and rights
thereto or therein by third parties, the requisite
licenses or other rights to
use all trademarks, service marks, copyrights,
service names, trade names,
patents, patent applications and licenses necessary
to conduct its business
(including, without limitation, any such licenses or
rights described in the
Offering Materials as being owned or possessed by the
Company) and, except as set
forth in the Offering Materials, there is no claim
or action by any person
pertaining to, or proceeding, pending or threatened,
which challenges the
exclusive rights of the Company with respect to any
trademarks, service marks,
copyrights, service names, trade names, patents,
patent applications and
licenses used in the conduct of the Company's businesses
(including, without
limitation, any such licenses or rights described in the
Offering Materials as being
owned or possessed by the Company) except any claim
or action that would not have
a material adverse effect on the Company; the
Company's current products,
services or processes do not infringe or will not
infringe on the patents
currently held by any third party.
(xii) Except as described in the Offering Materials, the
Company is not under any
obligation to pay royalties or fees of any kind
whatsoever to any third party
with respect to any trademarks, service marks,
copyrights, service names,
trade names,
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patents, patent applications,
licenses or technology it has developed, uses,
employs or intends to use or
employ, other than to their respective licensors.
(xiii) Subject to the performance by the Placement Agent of
its
obligations hereunder the
offer and sale of the Securities complies, and will
continue to comply, in all
material respects with the requirements of Rule 506
of Regulation D promulgated
by the SEC pursuant to the 1933 Act and any other
applicable federal and state
laws, rules, regulations and executive orders.
Neither the Offering
Materials nor any amendment or supplement thereto nor
any
documents prepared by the
Company in connection with the Offering will contain
any untrue statement of a
material fact or omit to state any 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. All
statements of material facts
in the Offering Materials are true and correct as
of the date of the Offering
Materials.
(xiv) All material taxes which are due and payable from
the
Company have been paid in
full or adequate provision has been made for such
taxes on the books of the
Company, except for those taxes disputed in good faith
by the Company.
(xv) None of the Company nor any of its officers,
directors,
employees or agents, nor any
other person acting on behalf of the Company, has,
directly or indirectly, given
or agreed to give any money, gift or similar
benefit (other than legal
price concessions to customers in the ordinary course
of business) to any customer,
supplier, employee or agent of a customer or
supplier, or official or
employee of any governmental agency or instrumentality
of any government (domestic
or foreign) or any political party or candidate for
office (domestic or foreign)
or other person who is or may be in a position to
help or hinder the business
of the Company (or assist it in connection with any
actual or proposed
transaction) which (A) might subject the Company to any
damage or penalty in any
civil, criminal or governmental litigation or
proceeding, or (B) if not
given in the past, might have had a materially adverse
effect on the assets,
business or operations of the Company as reflected in
any
of the financial statements
contained in the Offering Materials, or (C) if not
continued in the future,
might adversely affect the assets, business, operations
or prospects of the Company
in the future.
5. Representations, Warranties and Covenants of the
Investor.
A. The Investor represents, warrants and covenants as
follows:
(i) The Investor has the necessary power to enter into
this
Agreement and to consummate
the transactions contemplated hereby.
(ii) The execution and delivery by the Investor of this
Agreement and the
consummation of the transactions cont
