EXHIBIT 10.15
VISCORP
A NEVADA CORPORATION
PLACEMENT AGENT AGREEMENT
December 6, 1996
WINCAP, LTD.
▇▇▇▇▇▇▇ House
50 ▇▇▇▇▇▇▇ Street
Nassau, Bahamas
Dear Sirs:
The undersigned, VISCORP, a Nevada corporation, United States of America
(the "Company"), hereby confirms its agreement with WINCAP, LTD., an
International Business Company, incorporated under the laws of the Commonwealth
of the Bahamas (the "Placement Agent"), as follows:
1. INTRODUCTION. The Company intends to offer for sale and sell, as
promulgated by the Securities and Exchange Commission (the "SEC") in a series of
"offshore transactions" as defined in Rule 902 of Regulation S ("Regulation S")
under the Securities Act of 1933, as amended (the "1933 Act"), to a number of
persons, each of whom (a) is outside the United States (the "U.S."), (b) is not
a U.S. person, as defined in Regulation S ("U.S. Person"), and (c) is not an
affiliate of the Company (as hereinafter defined, an "Affiliate"), up to
6,666,667 shares (the "Shares") of the Company's 8% Cumulative Convertible
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), pursuant to
the terms of the Confidential Offering Memorandum dated December 9, 1996
(together with any exhibits, cover letters, amendments and supplements thereto,
the "Memorandum") (the "Offering"). The Placement Agent may not be the
Company's exclusive sales agent in connection with the Offering, and the Company
may make sales directly to investors, engage other placement agents or may
engage other qualified broker-dealers ("Selected Dealers") to assist in the
Offering.
This Placement Agent Agreement ("Agreement") sets forth the understandings
and agreements between the Company and the Placement Agent whereby, subject to
the terms and conditions herein contained, the Placement Agent will solicit
offers and obtain purchases for the Shares. The Placement Agent is not
obligated to purchase any Shares. The minimum offering amount will be 2,000,000
Shares (the "Minimum Offering") for US$3,000,000, and the maximum offering
amount will be 6,666,667 Shares for US$10,000,000.
2. SALES OF SHARES.
2.1 AGENCY. On the basis of the representations, warranties and covenants
contained herein and subject to the terms and conditions set forth herein, the
Company hereby appoints the Placement Agent as its non-exclusive agent for the
period beginning on the date of this
WINCAP, LTD.
December 6,1996
Page 2
Agreement and ending on March 31, 1997, subject to extension by the Company (the
"Offering Period"), subject to the earlier termination in accordance with the
terms hereof for the limited purpose of soliciting subscriptions (the
"Subscriptions") from prospective investors. On the basis of the
representations, warranties and covenants contained herein, and subject to the
terms and conditions set forth herein, the Placement Agent shall use its best
efforts as agent to obtain the Subscriptions. The Placement Agent does not
represent that its best efforts will produce any Subscriptions. In connection
therewith, the Placement Agent will not offer any Shares for sale, or solicit
any Subscriptions other than in accordance with the Memorandum.
2.2 MINIMUM OFFERING; TERMINATION DATE. All sales of Shares will be
conditioned on the receipt and acceptance before the end of the Offering Period
of Subscriptions for the Minimum Offering. At the close of business on the last
day of the Offering Period (the "Termination Date") the obligations of the
Placement Agent hereunder to use its best efforts as agent to obtain
Subscriptions shall terminate.
2.3 PRICE; MINIMUM PURCHASE. The offering price for each Share shall be
$1.50 (the "Offering Price"). A potential Investor (as hereinafter defined) is
required to purchase a minimum of 66,667 Shares for US$100,000, subject to
waiver by the Board of Directors.
2.4 ACCEPTANCE OF SUBSCRIPTIONS. No Subscription shall be effective
unless accepted by the Company. Subscription Agreements in the form attached
hereto as EXHIBIT A must be executed by potential Investors. The Shares shall
be offered subject to prior sale. The Company retains the unconditional right
to reject any Subscription in whole or in part; in such event, the funds
delivered by the potential Investor thereunder with respect to such Subscription
shall be returned to such potential Investor as promptly as practicable, and in
such event, no interest on such funds shall be paid to such potential Investor.
2.5 ESCROW. The proceeds of the Offering (the "Funds") will be held by
an escrow agent (the "Escrow Agent") in an escrow account established solely for
the purpose of depositing the Funds (the "Escrow Account") at a bank to be
mutually agreed upon by the Company, the Escrow Agent and the Placement Agent
pursuant to an escrow agreement (the "Escrow Agreement").
Such Escrow Agreement will provide that the Funds shall be released by
the Escrow Agent only upon its receipt of a joint written notice by the Company
and the Placement Agent. If Subscription Agreements for Shares constituting at
least the Minimum Offering have been received and accepted on or before the
Termination Date and the proceeds of the sale of such Shares have been deposited
into the Escrow Account (the "Initial Closing Date"), then the Company and the
Placement Agent shall jointly notify the Escrow Agent to release the Funds in
the following manner: (a) an amount of US$22,500 to the Escrow Agent as Escrow
Fee in
WINCAP, LTD.
December 6,1996
Page 3
accordance with the Escrow Agreement; (b) 11% of the Funds (less US$11,250) to
the Placement Agent as commissions and fees in accordance with the provisions of
Section 2.6 herein, and (c) the remainder of the Funds shall be released to the
Company. All other rights and obligations of the Escrow Agent will be included
in the separate Escrow Agreement.
2.6 PLACEMENT FEE. In consideration of the Placement Agent's execution of
this Agreement and for the performance of its obligations hereunder, the
Placement Agent shall be entitled to a placement fee (the "Placement Fee") equal
to eleven percent (11%) of the aggregate Offering Price of all Shares sold on a
Closing Date. The Placement Fee consists of the following: (a) a commission
fee equal to 7.5% of the Offering Price; (b) an advisory fee equal to 2% of the
Offering Price; and (c) a fee equal to 1.5% of the Offering Price to cover costs
and expenses in connection with the transactions contemplated hereby and
incurred by the Placement Agent. In addition to the Placement Fee, if the
aggregate amount raised from the sale of Shares pursuant to this Offering
exceeds US$3,000,000, the Placement Agent shall receive warrants to purchase
that number of shares of Common Stock, par value $0.01 per share, of the Company
(the "Common Stock") equal to 10% of the total issued and outstanding shares of
the Common Stock, on a fully diluted basis, as of the date the Offering has been
completed, at an exercise price equal to the Offering Price. The Placement
Agent Warrants shall expire three (3) years from the date of this Agreement (the
"Placement Agent Warrants"). With respect to the warrants that the Investors
are entitled to receive upon purchase of the Shares (the "Preferred Stock
Warrants"), as more fully described in the Subscription Agreement and
Confidential Offering Memorandum, the Placement Agent shall receive a fee equal
to 5% of the proceeds paid to the Company upon the exercise of any of the
Preferred Stock Warrants. The Placement fee, any amounts owed to the Placement
Agent upon the exercise of any of the Preferred Stock Warrants by Investors or
owed by the Placement Agent upon exercise of any of the Placement Agent Warrants
shall be payable in U.S. Dollars.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the Placement Agent that:
3.1 NO REGISTRATION OF THE SHARES; REGULATION S; COMPLIANCE WITH
SECURITIES LAWS.
3.1.1 The Shares are not required to be and have not and will not
be registered with the SEC pursuant to the 1933 Act and the rules and
regulations promulgated thereunder, in connection with the Offering. The
Shares will be offered and sold outside the U.S. in reliance upon the
exemption provided by Regulation S of the 1933 Act. The Company has
complied with and will comply with the "safe harbor" requirements of Rule
903 of Regulation S in connection with the Offering.
WINCAP, LTD.
December 6,1996
Page 4
3.1.2 For the purposes of this Agreement, the term "Affiliate"
means, when used with reference to a specified person, (a) any person or
entity directly or indirectly controlling, controlled by or under common
control with such specified person, and (b) any officer, director or
general partner of an entity referred to in clause (a). The term "control"
shall mean the power to direct the management and policies of a person,
directly or through one or more intermediaries, whether through the
ownership of voting securities, by contract, or otherwise.
3.2 ORGANIZATION; GOOD STANDING OF THE COMPANY. The Company is a duly
organized and validly existing corporation in good standing under the laws of
the State of Nevada with full power and authority to acquire, own, lease and
manage its properties and assets and to conduct the business in which it is
engaged, and is qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership of property or the
conduct of its business requires such qualification, except such jurisdictions
where the failure to so qualify would not have a material adverse effect on its
business, properties or condition (financial or otherwise).
4. REPRESENTATIONS AND WARRANTIES OF THE PLACEMENT AGENT. The Placement Agent
represents and warrants to, and agrees with, the Company, that:
4.1 SOLICITATION OF INVESTORS.
4.1.1 The Placement Agent shall use its best efforts to locate
offshore purchasers (the "Investors") who desire the opportunity to
purchase Shares pursuant to the Offering. So far as is under the Placement
Agent's control, the offer and sale of Shares shall be made in reliance
upon the exemption from the registration requirements of Section 5 of the
1933 Act provided by Regulation S and other administrative rules and
regulations interpreting the 1933 Act. The Placement Agent may rely upon
the potential Investor's representations made in the Subscription Agreement
and any additional information it may obtain from the potential Investor,
without having the obligation to make further investigations.
4.1.2 The Placement Agent shall provide a copy of the Memorandum
to each Investor prior to soliciting any offers to subscribe for or offers
to purchase any Shares. The Placement Agent is not authorized to and shall
not give any information or make any representations other than as
contained in the Memorandum. The Placement Agent has only provided copies
of the Memorandum to the potential Investors listed in writing in a letter
to the Company and its counsel by name, address and Memorandum copy number.
WINCAP, LTD.
December 6,1996
Page 5
4.1.3 The Placement Agent shall control the distribution of copies
of the Memorandum in accordance with applicable U.S. federal and state and
foreign securities laws.
4.2 AMENDMENTS TO MEMORANDUM. Until the end of the Offering Period, if
any event affecting the Offering or the Company shall occur which should be set
forth in a supplement or amendment to the Memorandum, the Placement Agent
agrees, upon receipt of such supplement or amendment from the Company, to
distribute such supplement or amendment to each potential Investor who has
previously received a copy of the Memorandum from the Placement Agent and who
continues to be interested in the Offering, unless the Company shall have
advised the Placement Agent that Shares will not be sold to such potential
Investor. The Placement Agent further agrees to include such supplement or
amendment in all subsequent deliveries of the Memorandum.
4.3 PUBLIC DISCLOSURE. The Placement Agent shall not disclose to anyone
(other than the potential Investors) that it has served as a placement agent in
this transaction or any other transaction with the Company, the terms of this
Agreement, the contents of the Memorandum or any other information it has
received in connection with the Offering, except with the prior written consent
of the Company.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Placement Agent as follows:
5.1 PREPARATION OF MEMORANDUM. The Company will prepare the Memorandum,
which shall be provided to the Placement Agent prior to use.
5.2 DELIVERY OF MEMORANDUM AND OTHER DOCUMENTS. The Company will deliver
to the Placement Agent, as soon as practicable, such reasonable number of copies
of the Memorandum as the Placement Agent may reasonably request for purposes
contemplated herein. The Company also will deliver to the Placement Agent, as
soon as practicable, such numbers of copies of the Subscription Agreement as the
Placement Agent may reasonably request.
6. COVENANTS OF THE PLACEMENT AGENT. The Placement Agent covenants and agrees
with the Company as follows:
6.1 DIRECTED SELLING EFFORTS. The Placement Agent shall not offer or sell
the Shares by means or form of any "directed selling efforts" in the U.S. within
the meaning of Rule 902 of Regulation S, by undertaking any activities that
could reasonably be expected, or are intended, to condition the market with
respect to the Shares, including but not limited to: (a) performing marketing
activities in the U.S. designed to induce the purchase of the Shares
WINCAP, LTD.
December 6,1996
Page 6
purportedly being distributed abroad, (b) mailing printed material to U.S.
Persons, (c) conducting promotional seminars in the U.S., or (d) placing
advertisements with television or radio stations broadcasting into the U.S. or
in publications with a general circulation in the U.S., which discuss the
Offering or are otherwise intended to condition, or could reasonably be expected
to condition, the market for the Shares.
6.2 TRANSACTIONAL RESTRICTIONS.
6.2.1 SALES MADE PRIOR TO EXPIRATION OF RESTRICTED PERIOD. The
Placement Agent shall make all offers and sales of the Shares, prior to the
expiration of the "restricted period," as defined in Rule 902 of Regulation
S (the "Restricted Period"), only: (a) in accordance with Regulation S,
(b) pursuant to registration of the Shares under the 1933 Act, or (c)
pursuant to an available exemption from the registration requirements of
the 1933 Act.
6.2.2 SALES MADE TO DISTRIBUTORS OR DEALERS. All sales of Shares
to a "distributor", a "dealer" or a "person receiving selling concessions,"
as those terms are defined in Rule 902 of Regulation S, ("Distributors")
prior to the expiration of the Restricted Period, are accompanied by a
confirmation or other notice to the purchaser stating that the purchaser is
subject to the same restrictions on offers and sales that apply to a
Distributor.
6.3 OFFERING RESTRICTIONS.
6.3.1 STATEMENTS TO BE USED IN OFFERING MATERIALS. The Placement
Agent shall ensure that all offering materials and documents (other than
press releases) used in connection with offers and sales of the Shares,
prior to the expiration of the Restricted Period, shall include statements
to the effect that the Shares have not been registered under the 1933 Act
and may not be offered or sold in the U.S. or to U.S. Persons (other than
Distributors), unless: (a) the Shares are registered under the 1933 Act, or
(b) an exemption from the registration requirements of the 1933 Act is
available. The Placement Agent may only use the offering materials and
documents delivered by the Company in connection with the offer of the
Shares.
6.3.2 PURCHASER CERTIFICATIONS; LEGENDS. The Placement Agent
shall cause all offers and sales of the Shares to be made subject to the
following conditions: (a) the purchaser of the Shares (other than a
Distributor) certifies that it is not a U.S. Person and is not acquiring
the Shares for the account or benefit of any U.S. Person or is a U.S.
Person who purchased Shares in a transaction that did not require
registration under the 1933 Act; (b) the purchaser of the Shares (other
than a Distributor) agrees to resell such
WINCAP, LTD.
December 6,1996
Page 7
Shares (i) only in accordance with Regulation S, (ii) pursuant to
registration, or (iii) pursuant to an available exemption from
registration; and (c) the Shares contain a legend to the effect that the
transfer is prohibited except in accordance with the provisions of
Regulation S. The Placement Agent may rely upon any Share certificate with
a legend in accordance with the provisions of Regulation S issued by the
Company, as well as any Subscription Agreement signed by a potential
Investor.
7. CONDITIONS PRECEDENT TO PLACEMENT AGENT'S OBLIGATIONS. The obligations of
the Placement Agent hereunder shall be subject to the continued accuracy
throughout the Offering Period of the representations, warranties and agreements
of the Company, and to the performance by the Company in all respects of its
obligations hereunder.
8. CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS. The obligations of the
Company to continue the Placement Agent's engagement pursuant to this Agreement
shall be subject to the accuracy in all material respects, as of the date hereof
and through each Closing Date, of the representations, warranties and agreements
of the Placement Agent, and to the performance by the Placement Agent in all
respects of its obligations hereunder.
9. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS TO SURVIVE. Except
as the context otherwise requires, all representations, warranties, covenants
and agreements contained in this Agreement shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Placement Agent or the Company, or by any controlling person of either, and
shall survive the Termination Date.
10. INDEMNIFICATION.
10.1 INDEMNIFICATION BY PLACEMENT AGENT. The Placement Agent agrees to
indemnify and hold harmless the Company (and each other person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act, each
officer of the Company who signs a registration statement and each director of
the Company) from and against any losses, claims, damages or liabilities to
which the Company (or any such officer, director or controlling person) may
become subject (under the 1933 Act or otherwise), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of, or are based upon, any failure of the Placement Agent to comply
with its covenants and agreements contained herein or any material
misrepresentation herein and the Placement Agent promptly will reimburse the
Company (or such officer, director or controlling person), as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. The liability of
the Placement Agent under this Agreement will be limited in any case hereunder
solely to gross negligence or willful misconduct on its part.
WINCAP, LTD.
December 6,1996
Page 8
10.2 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless the Placement Agent from and against any losses, claims, damages
or liabilities to which the Investor may become subject (under the 1933 Act or
otherwise), insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of, or are based upon, any failure
of the Company to comply with its covenants and agreements contained herein or
any material misrepresentation herein and the Company promptly will reimburse
the Placement Agent for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim. The liability of the Company (and each other person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act, each
officer of the Company who signs a registration statement and each director of
the Company) under this Agreement will be limited in any case hereunder solely
to gross negligence or willful misconduct on its part.
10.3 INDEMNIFICATION PROCEDURE. In case any proceeding (including any
governmental investigation) shall be instituted involving any person in respect
of which indemnity may be sought pursuant to either Section 10.1 or 10.2 above,
such person (the "Indemnified Party") shall promptly notify the person against
whom such indemnity may be sought (the "Indemnifying Party") in writing.
The Indemnified Party may retain its own counsel, reasonably satisfactory
to the Indemnifying Party, at the expense of such Indemnified Party, or may
request the Indemnifying Party to retain counsel, reasonably satisfactory to the
Indemnified Party, to represent the Indemnified Party in such proceeding at the
expense of the Indemnifying Party.
It is understood that the Indemnifying Party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Indemnified Party and that all such fees and expenses shall be
reimbursed as they are incurred.
The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there is a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such proceeding.
WINCAP, LTD.
December 6,1996
Page 9
11. EFFECTIVE DATE AND TERMINATION OF AGREEMENT.
11.1 EFFECTIVE DATE. This Agreement shall become effective as of the date
of execution hereof.
11.2 FAILURE TO FULFILL CONDITIONS. In the event that either party fails
to fulfill (the "Non-Fulfilling Party") any of the conditions precedent to the
performance of the obligations of the other party (the "Other Party"), the Other
Party shall elect to either (a) waive such unfulfilled condition or conditions
and consummate the transaction which is the subject hereof, in which event no
claim may be asserted against the Non-Fulfilling Party by reason of the matters
which were the subject of such conditions, or (b) terminate this Agreement as
provided below.
11.3 TERMINATION. Either party may terminate this Agreement at any time
for any reasons, without any further obligation to the non-terminating party.
12. NOTICES. Any notice, reply or other communication required or permitted by
this Agreement, except as herein otherwise specifically provided, shall be in
writing and (i) if sent to the Placement Agent, shall be mailed, delivered or
telecopied and confirmed to WINCAP, LTD., ▇▇▇▇▇▇▇ House, 50 ▇▇▇▇▇▇▇ Street,
Nassau, Bahamas, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopier: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇) and
(ii) if sent to the Company, shall be mailed, delivered or telecopied and
confirmed to VisCorp, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (telecopier: 312-655-0910), with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier: 312-902-1061). Any party may
change its address for notice by giving notice of its new address to the other
parties in the manner specified above.
13. MISCELLANEOUS.
13.1 CONFIDENTIALITY. The Placement Agent agrees and acknowledges that
certain information furnished by the Company pursuant to the Placement Agent's
requests may be of a proprietary nature and that any information so designated
by the Company shall be kept confidential and shall not be disclosed to any
third party without the prior approval of the Company, except as may otherwise
be required by law or court order.
13.2 PARTIES. This Agreement shall inure solely to the benefit of and
shall be binding upon each of the Placement Agent, the Company and their
respective successors, legal representatives and assigns, and no other person
shall have or be construed to have a legal or
WINCAP, LTD.
December 6,1996
Page 10
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained.
13.3 CONSTRUCTION. This Agreement shall be construed in accordance with
the laws of the State of Illinois, without giving effect to the principles
thereof relating to the conflict of laws.
13.4 DESCRIPTIVE HEADING; DEFINED TERMS. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement. Capitalized terms not
otherwise defined in this Agreement shall have the respective meanings set forth
in the Memorandum.
13.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
13.6 ENTIRE AGREEMENT; WRITTEN WAIVERS. This Agreement constitutes the
entire agreement of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations between the
parties with respect to the subject matter hereof. Neither the Company nor the
Placement Agent has relied on any written or oral representations or
inducements, other than those which are set forth in this Agreement in executing
and delivering this Agreement. No waiver, alteration or modification of any of
the provisions hereof shall be binding unless it is in writing and signed by
each of the parties hereto.
13.7 SEVERABILITY. If any of the provisions of this Agreement are rendered
or declared illegal by reason of any existing or subsequently enacted
legislation or by decree of a court of last resort, the remaining provisions of
the Agreement shall remain in full force and effect.
WINCAP, LTD.
December 6,1996
Page 11
If the foregoing correctly sets forth the understanding between the
Placement Agent and the Company, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the parties.
Very truly yours,
VISCORP
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board
AGREED AND ACCEPTED:
WINCAP, LTD.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director