EXHIBIT 10.27
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Agency Agreement
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This Agreement is dated for reference July 31, 2000 (the "Agreement").
BETWEEN
THE NEPTUNE SOCIETY, INC. of 3500 W. Olive, Suite 1430, Burbank, California
(the "Company")
AND
STANDARD SECURITIES CAPITAL CORPORATION, 24 Hazelton Avenue, Toronto,
Ontario M5R 2E2
(the "Agent")
WHEREAS:
A. The Company desires to privately sell up to 500,000 shares of Common
Shares at US$14.00 per share; and
B. The Company desires to appoint the Agent to distribute up to 500,000
Common Shares by private placement, and the Agent is willing to accept
the appointment on the terms and conditions of this Agreement.
THE PARTIES to this Agreement therefore agree:
DEFINITIONS
1 Unless expressly provided otherwise, where used in this Agreement or any
schedule hereto, the following terms shall have the following meanings,
respectively:
1.1 "1933 Act" means the United States Securities Act of 1933, as amended;
1.2 "Agent" means Standard Securities Capital Corporation;
1.3 "Agency Fee" means the cash fee of U.S.$75,000 payable to the Agent in
connection with the Private Placement;
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1.4 "Applicable Securities Laws" means, collectively, the 1933 Act, the
Exchange Act, and all applicable regulations, rules, rulings and
orders made thereunder and the securities legislation, policies, and
rules of each other relevant jurisdiction in which the Securities are
offered and/or sold;
1.5 "Closing Date" means July 31, 2000 or such other date as the Company
and the Agent may agree and in any event not later than July 31, 2000;
1.6 "Common Shares means the 500,000 Common Shares in the capital of the
Company with a par value of U.S. $0.002 each;
1.7 "Company" means The Neptune Society, Inc.;
1.8 "Directed Selling Efforts" means "Directed selling efforts" as defined
in Rule 902(c) of Regulation S of the 1933 Act;
1.9 "Disclosure Schedule" means the Disclosure Schedule provided by the
Company to the Agent in connection with Section 19 of this Agreement;
1.10 "Effective Date" means the first day that the Registration Statement
becomes effective to register the resale of the Placement Shares;
1.11 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended;
1.12 "Finder" means Systematic Investments Establishment, a Liechtenstein
company;
1.13 "Finder's Fee" means the fee of 150,000 Common Shares to be issued to
the Finder as a fee in connection with the Private Placement;
1.14 "Initial Filing Date" means the date which is 90 days from the date of
the Closing Date;
1.15 "Issue Price" means US$14.00 per Common Share;
1.16 "Material Adverse Effect" shall mean that such event, change or effect
which the Agent reasonably concludes is, in the aggregate, materially
adverse to the business, operations, prospects, properties, assets
(including intangible assets), liabilities (including contingent
liabilities), condition (financial or other) or results of operations
of the Company and its subsidiaries taken as a whole or the ability of
the Company to consummate the transactions contemplated by this
Agreement; provided,
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however that Material Adverse Effect shall not be deemed to include the
impact of (a) any change in United States Generally Accepted Accounting
Principles, (b) any change in general economic conditions or the industry
in which the Company is engaged in business, or (c) the effect of the
transactions contemplated hereby or compliance by the Company with the
provisions of this Agreement on the business, financial condition or
results of operations of the Company;
1.17 "Placement Shares" means the 500,000 Common Shares to be offered and
sold in the Private Placement, and where the context permits, includes
the 35,715 Common Shares to be offered and sold in the Private
Placement over-allotment.
1.18 "Private Placement" means the sale of the Common Shares on the terms
and conditions of this Agreement;
1.19 "Regulation S" means Regulation S adopted by the SEC under the 1933
Act;
1.20 "Restricted Period" means the one year period commencing on the
Closing Date;
1.21 "SEC" means the United States Securities and Exchange Commission;
1.22 "Securities" means the Placement Shares;
1.23 "Share Certificates" means the certificates of the Company
representing the Placement Shares to be issued on the Closing Date in
the names and denominations reasonably requested by the Agent or the
Subscribers;
1.24 "Subscribers" means the purchasers of the Placement Shares in the
Private Placement;
1.25 "Subscription Agreement" means the agreement to be duly completed and
signed by the Purchasers in connection with the sale of the Placement
Shares;
1.26 "United States" means the United States of America, its territories
and possessions, any State of the United States, and the District of
Columbia; and,
1.27 "U.S. Person" means a "U.S. Person" as that term is defined in Rule
902(o) of Regulation S of the 1933 Act.
APPOINTMENT OF AGENT - NATURE OF TRANSACTION
2 The Company appoints the Agent as its exclusive agent in Canada to solicit,
on a commercially reasonable best efforts basis, offers to purchase 500,000
Placement Shares at US$14.00 per share.
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3 The Agent accepts the appointment and agrees to act as the exclusive agent
of the Company and to use commercially reasonable best efforts basis to
find and introduce to the Company potential investors to purchase the
Placement Shares at a purchase price of US$14.00 per Common Share, it being
understood that the sales of such Placement Shares will take place outside
the United States.
4 Each Subscriber shall purchase the Placement Shares under an exemption from
registration under Applicable Securities Laws. The Agent will notify the
Company with respect to the identity of each such Subscriber as soon as
practicable and with a view to leaving sufficient time to allow the Company
to secure compliance with all relevant statutory requirements related to
the offer and sale of the Placement Shares.
AGENT'S FEE AND FINDER'S FEE
5 In consideration of the services to be rendered by the Agent in connection
with the Private Placement and the transactions contemplated herein, the
Company shall pay to the Agent the Agency Fee, which shall be payable in
full from the proceeds of the Private Placement, on the Closing Date.
6 In consideration of the services to be rendered by the Finder in connection
with the Private Placement and the transactions contemplated herein, the
Company shall pay to the Finder's Fee to the Finder. The Company shall
issue to the Finder, the Finder's Fee no later than three days after the
Closing Date upon receipt of a completed Representation Letter, in
substantially the form attached hereto as Exhibit A, from the Finder.
OFFERING RESTRICTIONS
7 The Company represents and warrants to, and covenants and agrees with, the
Agent as follows:
7.1 Neither the Company nor any of its affiliates, nor any person acting
on their behalf, has made or will make:
7.1.1 any offer to sell, or any solicitation of an offer to buy
any Securities to a U.S. Person or a person in the United
States, or
7.1.2 any sale of Securities unless, at the time the buy order was
or will have been originated, the purchase was outside the
United States or the Company, its affiliates, and any person
acting on its or their behalf reasonably believed that the
purchaser was outside the United States;
7.2 During the period in which the Securities are offered for sale,
neither the Company
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nor any of its affiliates, nor any person acting on its or their
behalf has made or will make any Directed Selling Efforts in the
United States, or has taken or will take any action that would cause
the exemptions afforded by Regulation S to be unavailable for offers
and sales of the Securities;
7.3 The Company undertakes and agrees that it will refuse to register any
transfer of any Securities offered and sold pursuant to this Agreement
in reliance upon Regulation S unless such Securities are transferred
in accordance with the provisions of Regulation S, pursuant to
registration under the 1933 Act or pursuant to an available exemption
for the registration under the 1933 Act;
7.4 Neither the Company nor any of its predecessors or affiliates has been
subject to any order, judgment, or decree of any court of competent
jurisdiction temporarily, preliminary or permanently enjoining such
person for failure to comply with Rule 503 of Regulation D concerning
the filing of a notice of sales on Form D;
7.5 Neither the Company, any of its affiliates nor any person acting on
its or their behalf have engaged or will engage in any form of general
solicitation or general advertising (as the terms are used in
Regulation D under the 1933 Act) with respect to offers or sales of
the Securities in the United States, including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media, or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising;
7.6 The Company is not an "investment company" within the meaning of the
United States Investment Company Act of 1940; and
7.7 Except with respect to the offer and sale of the Securities offered
hereby, the Company has not, since January 1, 2000, sold, offered for
sale or solicited an offer to buy any of its securities in the United
States or to a U. S Person in a transaction which, if integrated with
this offering of Securities, would result in a violation of this
registration requirement of applicable U.S. securities laws.
8 The Agent represents and warrants to, and covenants and agrees with, the
Company as follows:
8.1 The Agent acknowledges that the Securities have not been registered
under the 1933 Act and that such securities are being offered and sold
outside the United States in reliance upon Rule 903 of Regulation S
under the 1933 Act;
8.2 Neither the Agent nor any of its affiliates nor any person acting on
the Agent's behalf or on behalf of any of their affiliates has made or
will make:
8.2.1 any offer to sell or any solicitation of an offer to buy,
any Securities to any
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U.S. Person or person in the United States, or any sale of
Securities to any purchaser unless, at the time the buy
order was or will have been originated, the purchaser was
outside the United States, or such Agent, affiliate or
person acting on behalf of either reasonably believed that
such purchaser was outside the United States;
8.2.2 any Directed Selling Efforts in the United States with
respect to the Securities; or, 1.1.1
8.2.3 any offer to sell or any solicitation of an offer to buy, by
any form of general solicitation or general advertising (as
those terms are used in Regulation D under the 1933 Act) or
in any manner involving a public offering within the meaning
of Section 4(2) of the 1933 Act, any of the Securities;
8.3 At or prior to confirmation of sale of the Securities, the Agent will
send to each distributor (as defined in Regulation S), dealer or
person receiving a selling concession, fee or other remuneration that
purchases Securities during the Restricted Period a confirmation or
notice to substantially the following effect:
"The Securities have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered or sold within the United States or to, or for
the account or benefit of a U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until one year after
the later of the commencement of the offering and the closing
date, except in either case in accordance with Regulation S (or
Rule 144A, if available) under the Securities Act. Terms used
herein have the meaning given to them in Regulation S."
8.4 The Agent agrees that neither it nor any of its affiliates will engage
in any hedging transactions with respect to the Securities during the
Restricted Period.
8.5 The Agent agrees that neither it nor any of its affiliates will
solicit offers to purchase or sell the Securities so as to require
registration thereof or filing of a prospectus or similar document
with respect thereto under the laws of any jurisdiction.
8.6 The Agent covenants and agrees that offers and sales shall be effected
in accordance and compliance with Applicable Securities Laws and shall
be effected in such manner so as not to: (i) require registration of
the Securities, or the filing of a prospectus or other document with
respect thereto; or (ii) subject the Company to any continuous
disclosure of similar reporting requirements under the laws of any
jurisdiction in which an offer or a sale of the Securities is made or
in the United States.
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RESALE RESTRICTIONS
9 The Agent further acknowledges and agrees that the Securities may also be
subject to resale restrictions in jurisdictions outside of the United
States and Canada of which the Company makes no representations or promises
to qualify the Common Shares for sale or resale in or from such
jurisdictions.
10 The Agent acknowledges and agrees that the Share Certificates will bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES
ACT"), AND MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE
COMPANY, (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, AND IN COMPLIANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS, (C) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER, IF APPLICABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (D) WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY,
PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS. HEDGING TRANSACTIONS
INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH U.S. SECURITIES LAWS."
CLOSING AND CLOSING DOCUMENTS
11 The Closing will take place at 1:00 p.m. (Toronto time) on each of the
Closing Dates.
12 If the Company has satisfied all of its obligations under this Agreement,
the Agent will, on the Closing, pay the proceeds to the Company against
delivery of the Share Certificates.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AGENT
13 The Agent covenants with the Company that it will:
13.1 not solicit offers to purchase or sell the Common Shares so as to
require registration thereof or filing of a prospectus with respect
thereto under, or as to knowingly breach in any material respect, the
laws of any jurisdiction including, without limitation, the United
States of America, or any state there of, Canada or the United
Kingdom, and
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not solicit offers to purchase or sell the Common Shares in any
jurisdiction outside of the USA where the solicitation or sale of the
Common Shares would result in any ongoing disclosure requirements in
such jurisdiction, or any registration requirements in such
jurisdiction, except for the filing of a notice or report of
solicitation or sale, or where the Company may be subject to liability
in connection with the sale of the Common Shares which is materially
more onerous than its liability under the 1933 Act;
13.2 obtain from each Purchaser an executed Subscription Agreement in a
form reasonably acceptable to the Company and to the Agent relating to
the transaction herein contemplated, together with all documentation
as may be necessary in connection with the subscription for the Common
Shares; and
13.3 not, in connection with the Offering, engage in any general
solicitation or general advertising, including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio, or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising
14 The Agent represents and warrants to the Company that:
14.1 it is a valid and subsisting entity under the laws of the Province of
Ontario;
14.2 it is a securities dealer registered under the Ontario Securities Act;
and
14.3 it will only effect sales under the offering to persons outside the
United States of America and outside of Canada, and in jurisdiction
where the Securities may be lawfully offered and sold.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
15 The Company hereby represents, warrants and covenants to and with the Agent
that, except as disclosed in the Disclosure Schedule annexed hereto:
15.1 the Company and each of the subsidiaries are valid and subsisting
corporations duly incorporated and in good standing under the laws of
the jurisdictions in which they are incorporated;
15.2 the Company and each of the subsidiaries is conducting its business in
compliance with all applicable laws, rules and regulations of each
jurisdiction in which its business is carried on and, the Company and
each of the subsidiaries is duly licensed, registered or qualified in
all jurisdictions in which it owns, leases or operates its property or
carries on business to enable its business to be carried on as now
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conducted and its property and assets to be owned, leased and operated
and all such licenses, registrations and qualifications are valid and
subsisting and in good standing, except in respect of matters which do
not and will not result in a Material Adverse Effect;
15.3 the Company legally and beneficially owns, directly or indirectly, all
of the issued and outstanding shares in the capital of each of its
subsidiaries and in each case, except for the pledge of the shares of
Neptune Management Corp., Heritage Alternatives Inc. and Neptune
Pre-need Plan Inc. under the terms and condition of a Purchase
Agreement dated for reference March 26, 1999, as amended, such shares
are free and clear of all mortgages, liens, charges, pledges, security
interest, encumbrances, claims or demand of any kind whatsoever. All
of such shares have been duly authorized and validly issued and are
outstanding as fully paid and non-assessable shares and no person has
any right, agreement or option, present or future, contingent or
absolute or any right capable of becoming a right, agreement or
option, for the purchase from the Company or any of its subsidiaries
an interest in any such shares or for the issue or allotment of any
unissued shares in the capital of any of its subsidiaries or any other
security convertible into or exchangeable or excisable for any such
shares;
15.4 the authorized capital of the Company is 25,000,000 Common Shares and
the issued capital of the Company is 7,031,965 Common Shares, and
except as set forth on the Disclosure Schedule and for options to
purchase commons shares currently outstanding to employees of the
Company and its subsidiaries, no person has any right, agreement or
option, present or future, contingent or absolute or any right capable
of becoming a rights, agreement or option, for the issue or allotment
of any unissued shares in the capital of the Company or any other
security convertible into or exchangeable or exercisable for any such
shares or to require the Company to purchase, redeem or otherwise
acquire any of the issued and outstanding Common Shares;
15.5 except as set forth on the Disclosure Schedule, there has not been any
material change in the assets, liabilities or obligations (absolute,
accrued, contingent or otherwise) of the Company or any of the
subsidiaries that has not been publicly disclosed;
15.6 except as set forth on the Disclosure Schedule, there has not been any
material change in the capital stock or long-term debt of the Company
or any of the subsidiaries that has not been publicly disclosed;
15.7 except as set forth on the Disclosure Schedule, there has not been any
material change in the business, business prospects, condition
(financial or otherwise) or results of the operations of the Company
or any of the subsidiaries that has not been publicly disclosed;
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15.8 the Company and each of the subsidiaries have carried on business in
the ordinary course;
15.9 the audited combined financial statements for the year ended December
31, 1999 and the unaudited financial statement for any subsequent
period in respect of which such statements have been delivered by the
Company to its security holders prior to the Closing Date present
fairly the financial condition of the Company and its subsidiaries for
the period then ended;
15.10the Company has complied and will come fully with the requirements of
all applicable corporate and securities laws, including without
limitation, the 1933 Act in relation to the issue and trading of its
securities and in all matters relating to the Private Placement;
15.11except as set forth on the Disclosure Schedule, neither the Company
nor any of its subsidiaries is in breach or violation of or default
under (and no event has occurred and is continuing which with the
giving of notice or lapse of time or both would constitute an event of
default under), and neither the execution and delivery by the Company
of this Agreement or the Subscription Agreements, nor the consummation
of the transactions contemplated hereby or thereby nor the due
observance and performance by the Company of its covenants or in
breach or violation of, or constitutes or will constitute a default
(or any event which with the giving of notice or lapse of time or both
would constitute an event of default) under, any of the terms or
provisions of the constating documents resolutions of the directors or
shareholders of the Company or any of its subsidiaries, or any of the
terms or provisions of any agreement or instrument of which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of their
respective properties or assets are subject, the effect of any of
which breaches, violations, conflicts or defaults, singularly or in
the aggregate, might result in a Material Adverse Effect, or would
impair the ability of the Company to consummate the transactions
contemplated hereby or to duly observe and perform any of its
covenants or obligations contained in the Subscription Agreements;
15.12except as set forth on the Disclosure Schedule, the Company nor its
subsidiaries is a party to any actions, suits or proceedings which
could materially affect its business or financial condition, and no
such actions, suits or proceeding have been threatened or, to the best
of the knowledge of the Company are contemplated;
15.13this Agreement has been authorized by all necessary corporate action
on the part of the Company; and
15.14the Company shall deliver to the Agent and each Subscriber on the
Closing Date a legal opinion in a form satisfactory to the Agent and
its legal counsel.
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EXPENSES OF AGENT
16 The Company will pay all of the expenses of the Private Placement and the
Registration Statement and all the expenses reasonably incurred by the
Agent in connection with the Private Placement and the Registration
Statement including, without limitation, the fees and expenses of the
solicitors for the Agent. 1
17 The Agent, may from time to time, render accounts for its expenses incurred
in connection with the Private Placement to the Company for payment on or
before the dates set out in such accounts.
18 The Company authorizes the Agent to deduct its reasonable expenses in
connection with the Private Placement from the proceeds of the Private
Placement, including expenses for which an account has not yet been
rendered.
INDEMNITY
19 The Company will indemnify the Agent, its affiliates and its officers,
directors, employees and agents and save them harmless against all losses,
claims, damages, or liabilities:
19.1 existing (or alleged to exist) by reason of an untrue statement
contained in the Registration Statement, Subscription Agreement or
other written or oral representation made by the Company to an
investor or potential investor in connection with the Private
Placement or by reason of the omission to state any fact necessary to
make the statement not misleading (except for information and
statement referring solely to the Agent);
19.2 arising directly or indirectly out of any order made by any regulatory
authority based upon an allegation that any such untrue statement or
omission exists (except information and statement referring solely to
the Agent), that trading in or distribution of the Securities is to
cease;
19.3 resulting from the Company's failure to obtain the requisite
regulatory approval to the Private Placement or to the Registration
Statement;
19.4 resulting form the breach by the Company of any of the terms of this
Agreement;
19.5 resulting from any representation or warranty made by the Company
herein not being true or ceasing to be true;
19.6 if the Company fails to issue and deliver the certificates for the
Securities in the form and denominations satisfactory to the agent at
the time and place required by the
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Agent with the result that the completion of a sale of the Placement
Shares does not take place; or
19.7 if, following the completion of a sale of any of the Securities, a
determination is made by any competent authority setting aside the
sale, unless that determination arises out an act or omission of the
Agent.
20 If any action or claim is brought against the Agent in respect of which
indemnity may be sought from the Company pursuant to this Agreement, the
Agent will promptly notify the Company in writing.
21 The Company will assume the defense of the action or claim, including the
employment of counsel and the payment of all expenses.
NOTICE
22 Any notice under this Agreement will be given in writing and must be
delivered, sent by telex, telegram or telecopier or mailed by prepaid post
and addressed to the party to which notice is to be given at the address
indicated above, or an another address designated by either party in
writing.
23 If notice is sent by telex, telegram or telecopier or is delivered, it will
be deemed to have been given at the time of transmission or delivery.
24 If notice is mailed, it will be deemed to have been received 48 hours
following the date of mailing of the notice.
TIME
25 Time is of the essence of this Agreement.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
26 The representations, warranties, covenants of each of the Company and the
Agent contained in this Agreement will survive the closing of the purchase
and sale of the Securities.
ENUREMENT
27 This Agreement enures to the benefit of and is binding on the parties to
this Agreement and their successors and permitted assigns.
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HEADINGS
28 The headings in this Agreement are for convenience or reference only and do
not affect the interpretation of this Agreement.
COUNTERPARTS
29 This Agreement may be executed in two or more counterparts, each of which
will be deemed to be an original and all of which will constitute one
agreement, effective as of the reference dated given above.
GOVERNING LAW
30 This Agreement shall be construed with, and the rights of the parties shall
be governed by, the laws of the Province of Ontario, and each of the
parties irrevocably attorns to the jurisdictions of the court of Ontario.
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This document was executed and delivered as of the date given above.
THE NEPTUNE SOCIETY, INC.
Per:
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Marco Markin, Chief Executive Officer and Director
STANDARD SECURITIES CAPITAL CORPORATION
Per:
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Authorized Signatory
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Disclosure Schedule
Agency Agreement between The Neptune Society, Inc. and
Standard Securities Capital Corp. dated for reference July __, 2000
Listing of Actions, Suits or Proceedings
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Actions/Claims
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Case No. BC201045 Filed November 19, 1998 between Karen Vogtpowell and Kenna
Figueroa v. Neptune-Los Angeles, Ltd., Neptune-San Pedro Ltd., Heritage
Alternatives, Ltd. Emanuel Weintraub
Case No. BC202774 File December 22, 1998 between Neptune Society of Orange
County, Neptune Society of Fresno, Neptune Society of Central California v.
Neptune Management Corporation, A California Corporation; Neptune Society of Los
Angeles, Ltd, A California Ltd. Partnership, Emanuel Weintraub, Larry Miller
Case No. 233025-R4 Filed January 23, 1997 between The People of the State of
California V. Neptune Society of Los Angeles, Ltd., Neptune Society of Los
Angeles, San Pedro, Neptune Society of Los Angeles, Burbank, Neptune Society of
Santa Barbara, Heritage Crematorium, Heritage Alternatives, Inc. and Does 1
through 10, inclusive
Pending Actions/Claims
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Neptune Society of Los Angeles - Joreen Long claimaint, Gaylord Long decendent,
DOD June 15, 1999, Insurer: Evanston Insurance
