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EXHIBIT 10.9
ACUNETX, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: January 31, 2006
Monitor Capital, Inc.
9171 Towne Centre Drive, Suite 465
San Diego, CA 92122
Ladies and Gentlemen:
The undersigned, AcuNetx, Inc., a Nevada corporation (the
"COMPANY"),
hereby agrees with Monitor Capital, Inc. (the "PLACEMENT AGENT"),
and Cornell
Capital Partners, LP (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 between the Company and the
Investor (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 Twelve Million
Dollars
($12,000,000) (the "COMMITMENT AMOUNT") of the Company's common
stock, par value
$0.001 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, and the Registration Rights Agreement are
referred to
sometimes hereinafter collectively as the "OFFERING MATERIALS." The
Company's
Common Stock purchased by the Investor under the Standby Equity
Distribution
Agreement is sometimes referred to hereinafter as the "Securities."
The
Placement Agent shall not be obligated to sell any Securities.
2. COMPENSATION.
A. On the date hereof 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 Common
Stock, as quoted by Bloomberg, LP, on the December 21, 2005 (the
"PLACEMENT
AGENT'S SHARES"). The Placement Agent shall be entitled to
"piggy-back"
registration rights with respect to the Placement Agent's Shares,
which shall be
triggered upon registration of any shares of Common Stock by the
Company
pursuant to the Registration Rights Agreement dated the date
hereof.
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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, 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, 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 and the Standby Equity
Distribution
Agreement 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 herein and 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 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
have been duly
authorized and, when issued and paid for in accordance with this
Agreement, the
Standby Equity Distribution Agreement and 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.
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(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 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 is duly organized and validly exists
as a corporation in good standing under the laws of the State of
Nevada. 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 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 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
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Offering Materials nor the issuance and sale or delivery of the
Securities, nor
the consummation of any of the 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 the Company has not (a) issued any
securities or
incurred any liability or obligation, direct or contingent,
