VISION ACQUISITION II, INC. Private Placement of Units PLACEMENT AGENCY AGREEMENT
Exhibit
10.1
Private
Placement of Units
| Dated as of March 19, 2008 |
Placement
Agent
Placement
Agent’s Address
Ladies
and Gentlemen:
Vision
Acquisition II, Inc., a Delaware corporation (the “Company”) proposes to offer
for sale (the “Offering”) in a private offering pursuant to Section 4(2)
and/or Section 4(6) of the Securities Act of 1933, as amended (the “Act”), and
Rule 506 of Regulation D promulgated thereunder, a minimum of $8,000 (the
“Minimum Offering”) of units (“Units”). Each Unit consists of 10,000 shares of
Common Stock, par value $.0001 per share (the “Common Stock”). Each investor
(“Investor”) may purchase only one Unit at a per Unit price of $200, or $.02 per
share. The Units are being offered during an offering period commencing on
the
date hereof and expiring the earliest of: (i) 60 days thereafter, unless
extended by the Company and the Placement Agent (defined below) for up to an
additional sixty (60) days; (ii) the sale of Units constituting at least the
Minimum Offering, or (iii) the termination of the Offering by the Company and
the Placement Agent (such period, as same may be extended, being hereinafter
referred to as the "Offering Period"). Offers and sales of the Units shall
be
solely to Accredited Investors (as defined in Regulation D). This Agreement
shall confirm our agreement concerning XXX. acting as our exclusive placement
agent (the “Placement Agent” or “XXX”) in connection with the offer and sale of
the Units.
l.
Appointment of Placement Agent.
On
the
basis of the representations and warranties contained herein, and subject to
the
terms and conditions set forth herein, the Company hereby appoints XXX as its
Placement Agent and grants to it the exclusive right to offer, as its agent,
the
Units pursuant to the terms of this Agreement. The Company expressly
acknowledges and agrees that XXX’s obligations hereunder are not on a firm
commitment basis and that the execution of this Agreement does not constitute
a
commitment by XXX to purchase the Units and does not ensure the successful
placement of the Units or any portion thereof. Further, XXX’s obligation to use
its best efforts to assist the Company in the Offering is subject to the
completion of a due diligence review of the Company, and the market for such
securities generally, as well as general market conditions. On the basis of
such
representations and warranties, and subject to such conditions, XXX hereby
accepts such an appointment and agrees to use its reasonable best efforts to
secure subscriptions to purchase the Units.
2. Terms
of
the Offering.
(a)
The
Company shall prepare and deliver to the Placement Agent copies of a
Confidential Private Placement Memorandum (the “PPM”), relating to, among other
things, the Company, the Common Stock and the terms of the sale of the Units.
The PPM, including all exhibits and appendices thereto, the Subscription
Agreement, Accredited Investor Questionnaire and Registration Rights Agreement,
are referred to herein as the “Offering Documents” and shall include any
supplements or amendments in accordance with this Agreement. The Company shall
utilize the services of securities counsel with experience in private placement
offerings and the rules and regulations of the Securities and Exchange
Commission (“SEC”) in drafting the Offering Documents.
(b)
The
Offering shall consist of the Minimum Offering of $8,000 of Units. There is
no
maximum number of Units being offered. The terms of the Offering and Common
Stock are further described in the Offering Documents which are incorporated
herein. In the event a subscription is not accepted, such rejected subscription
funds will be returned to the subscriber without interest or deductions.
(c)
The
Units are being offered on a “best efforts all or none” basis as to the Minimum
Offering. The Offering shall commence on the date that the Company delivers
to
the Placement Agent the Offering Documents that have been completed to the
reasonable satisfaction of the Placement Agent and its counsel, and shall expire
at 5:00 p.m., New York time, on a date which is the earliest to occur of (ii)
60
days thereafter and may be extended for up to an additional 60-day period at
the
discretion of the Company and Placement Agent, (ii) in the discretion of the
Company, the sale of Units constituting at least the Minimum Offering, and
(iii)
termination of the Offering Period by the Company and the Placement Agent.
(d)
Each
prospective Investor who desires to purchase the Units shall deliver to the
Placement Agent a fully executed subscription agreement and questionnaire
(collectively, hereinafter the “Subscription Agreement”), in the form annexed to
the PPM and immediately available funds in the amount necessary to purchase
the
number of Units such Investor desires to purchase. Neither the Company nor
the
Placement Agent shall 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
Investor in payment for Units.
(e)
The
Placement Agent shall deliver each subscription funds received from an Investor
to the Company for deposit in a segregated escrow account (the “Escrow Account”)
at Signature Bank institution, which shall serve as the escrow agent for this
Offering (the “Escrow Agent”), pursuant to that certain escrow agreement by and
among the Company, XXX and the Escrow Agent, dated March 19, 2008 (the “Escrow
Agreement”) and shall deliver the executed copies of the Subscription Agreement
received from such Investor to the Company. All funds shall be held in the
segregated account pending acceptance of the subscription. The Company shall
notify the Placement Agent promptly of the acceptance or rejection of any
subscription.
(f)
XXX
may engage other persons selected by XXX to assist XXX in the Offering (each
such broker/dealers being hereinafter referred to as a "Selling Group Member")
and XXX may allow such Selling Group Member such part of the compensation and
payment of expenses payable to XXX under Section 5 hereof as XXX shall
determine. Any such Selling Group Member shall be a member firm in good standing
as a broker-dealer under the rules of the Financial Industry Regulatory
Authority, Inc (“FINRA”). Each Selling Group Member shall be required to agree
in writing to comply with the provisions of this Section 2. The Company hereby
agrees to make such representations and warranties to, and covenants and
agreements with, any Selling Group Member (including an agreement to indemnify
such Selling Group Member on terms substantially similar to Section 12 hereof)
as provided herein.
3.
Closings: Release of Funds.
The
date
that the subscriptions of at least the Minimum Offering amount are accepted
by
the Company and funds are released from the Escrow Account shall be deemed
the
“Closing Date.” At least one (1) day prior to the release of funds, the Company
and the Placement Agent shall send written notice to each other, which notice
shall state the amount of funds to be released, the name and address of each
subscriber whose subscription has been accepted, and the amount of each
subscription.
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4. Representations
and Warranties of the Placement Agent.
The
Placement Agent represents and warrants to and covenants with the Company as
follows:
(a) The
Placement Agent is duly incorporated and validly existing and in good standing
under the laws of its state of incorporation.
(b) The
Placement Agent is, and at the time of the Closing will be, a member in good
standing of FINRA.
(c) Sales
of
Units by the Placement Agent will only be made in such jurisdictions in which
the Placement Agent or a Selling Group Member is a registered broker-dealer
or
where an applicable exemption from such registration exists.
(d) Offers
and sales of Units by the Placement Agent will be made only in accordance with
this Placement Agreement and in compliance with the provisions of Section 4(2)
and Section 4(6) of the Act and Rule 506 of Regulation D promulgated thereunder
(it being understood and agreed that the Placement Agent shall be entitled
to
rely upon the information and statements provided by the Investor in the
Subscription Agreement), and the Placement Agent will furnish to each investor
a
copy of the Offering Documents prior to accepting any subscription for the
Units.
5.
Compensation.
(a)
The
Placement Agent shall be entitled, on the Closing Date, as compensation for
XXX’s services as Placement Agent under this Agreement, to selling commissions
equal to 10 % of the gross proceeds received by the Company from the sale of
the
Units effected at the Closing (the “Placement Agent’s Fees”).
(b) Concurrent
with, and as a condition to, the Closing of the Offering, the Company shall
sell
to the Placement Agent (or its designated affiliates), for nominal
consideration, 285,000 shares
of
Common Stock (the “Placement Agent’s Shares” and together with the Placement
Agent’s Fees, the “Placement Agent’s Compensation”).
The
Company covenants and agrees that with respect to registration under the Act
of
the shares of Common Stock, the Placement Agent shall be entitled to the same
registration rights as provided to Investors in the Offering.
6.
Representations and Warranties of the Company.
(a)
The
Company represents and warrants to, and agrees with, the Placement Agent that
as
of the date hereof and as of the Closing Date (except as affected by the
Offering):
(i)
Assuming the accuracy of the representations and warranties of the Investors
set
forth in the Subscription Agreement and the representations and warranties
of
the Placement Agent set forth herein, the Offering Documents (a) contain, and
at
all times during the period from the date hereof to and including the Closing
Date, will contain all information required to be contained therein, if any,
pursuant to Rules 502 and 506 of Regulation D and all applicable federal and/or
state securities and “blue sky” laws, (b) do not, and during such period will
not, 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 made therein not misleading, and (c)
no
supplemental sales material supplied or approved in writing by any officer
of
the Company (when read in conjunction with the Offering Documents, whether
designated only for broker-dealer use or otherwise) includes or will include
any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading. Each contract, agreement, instrument,
lease, license, or other document required to be described in the Offering
Documents shall be, and have been, accurately described therein.
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(ii)
No
information (it being understood that neither the Company nor any of its
officers or directors or employees shall provide any written information to
any
Investor which is not contained in the Offering Documents) provided by the
Company to Investors pursuant to Section 7(f) hereof shall 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
circumstances made therein not misleading.
(iii)
The
Company has not, directly or indirectly, solicited any offer to buy or offered
to sell any Common Stock or any other securities of the Company during the
twelve-month period ending on the date hereof except as may be properly
described in the Offering Documents, and has no present intention to solicit
any
offer to buy or to offer to sell any of the Units, any Common Stock or any
other
securities of the Company other than pursuant to this Agreement.
(iv)
The
Company is, and at all times during the period from the date hereof to and
including the Closing Date will be, a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware, with
full corporate power and authority, and has obtained all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits and
declarations of and from, and has made filings with, all federal, state and
local authorities, to own, lease, license, and use its properties and assets
and
to conduct its business as presently conducted as described in the Offering
Documents and/or in any such case where the failure to have any of the foregoing
would not have a material adverse effect on the Company's presently conducted
business. As of the date hereof, the Company is, and at all times during the
period from the date hereof to and including the Closing Date, duly qualified
to
do business and is in good standing in every jurisdiction in which its
ownership, leasing, licensing, or use of property and assets or the conduct
of
its business makes such qualification necessary except where the failure to
be
so qualified would not have a material adverse effect on the Company's
business.
(v)
The
documents filed by the Company with the SEC (the “SEC Reports”), do not 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 not
misleading, all in light of the circumstances under which they were made. Each
statute, regulation, legal and governmental proceeding, contract, agreement,
instrument, lease, license, or other document described in the SEC Reports
has
been accurately described therein in all material respects.
(vi)
No
document provided by the Company to Investors pursuant to Section 6(a)(vii)
hereof, and no oral information provided by the Company to Investors, 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
not misleading. Contracts to which the Company is a party provided by the
Company to Investors shall not be deemed to contain any untrue statement of
a
material fact or to omit to state any material fact if the contract so provided
is a true, correct and complete copy of such contract, as amended or modified
through the date it is so provided.
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(vii)
The
Company does not own, directly or indirectly, an equity or other ownership
interest equal to or greater than 50 percent in any corporation or other
entity.
(viii)
Since the dates as of which information is given in the Offering Documents,
other than as set forth therein, (A) there has not been any material adverse
change or any development involving a prospective material adverse change in
the
general affairs, business, prospects, properties, management, condition
(financial or otherwise) or results of operations of the Company, whether or
not
arising from transactions in the ordinary course of business, (B) except in
the ordinary course of business, the Company has not incurred will not have
incurred, any material liabilities or obligations, direct or indirect, or have
entered into any material transaction, (C) the Company has not and will not
have
paid or declared any dividends or other distributions on its capital stock
and
(D) there has not been any change in the capital stock of the Company or any
material change in the short-term or long-term debt of the Company.
Notwithstanding this, XXX acknowledges that as a shell company, its ability
to
continue as a going concern is in question.
(ix)
The
Company’s auditors, whose report on the Company’s audited financial statements
is included in the SEC Reports included as part of the Offering Documents,
are
independent public accountants with respect to the Company as required by the
Act and the rules and regulations thereunder.
(x)
The
Company’s financial statements, together with related notes and schedules of the
Company, included as part of the Offering Documents comply in all respects
with
the requirements of the Act and the rules and regulations thereunder and present
fairly the financial position of the Company on the respective dates indicated
and its statement of operations for the respective periods covered thereby.
Any
condensed financial information appearing in the Offering Documents is fairly
stated in all material respects in relation to the financial statements of
the
Company from which they have been derived. Such financial statements, and
related notes and schedules, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis through the entire
period involved.
(xi) Except
as
described in the Offering Documents, there is no action, suit, investigation
or
proceeding pending or threatened before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, or arbitrator to which the Company is or may become a
party
or of which any property of the Company is subject or affected that (A) might
affect the consummation of the transactions contemplated under this Agreement,
including the issuance or validity of the Common Stock offered hereby, or (B)
might have a material adverse effect on the condition (financial or otherwise),
sales, properties, earnings, net worth, prospects, results of operations or
businesses of the Company, taken as a whole (“Material Adverse Effect”), or any
of its principal officers. All pending legal or governmental proceedings to
which the Company is a party or of which any of its properties are subject
or
affected which are not described in the Offering Documents, including ordinary
routine litigation incidental to the business, would not have a Material Adverse
Effect. No labor dispute with the employees of the Company exists or is
threatened or imminent that could have a Material Adverse Effect.
(xii) The
Company has all approvals, licenses, franchises, authorizations and permits
(collectively, “permits”) necessary under all applicable statutes, codes, rules,
regulations, orders and decrees of governments or governmental bodies
(collectively, “laws”), which are material to the ownership, lease or use of
their respective properties or the conduct of their respective businesses as
described in the Offering Documents. The Company has not received notice of
any
proceedings relating to the revocation or modification of any such permits
which, singly or in the aggregate, would have a Material Adverse Effect, and
the
Company is in all material respects in compliance with such permits and
laws.
5
(xiii)
The Company does not own or license any patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, copyrights, know-how, trade secrets, licenses and rights in any
thereof (“Proprietary Rights”). The Company does not have any knowledge of, and
the Company has not received any notice of any pending conflict with or
infringement of, the rights of others with respect to any Proprietary Rights
or
with respect to any license of Proprietary Rights. No action, suit, arbitration,
or legal, administrative or other proceeding, or domestic or foreign
governmental investigation is pending or, to the best of the Company's
knowledge, threatened, which involves any Proprietary Rights. The Company is
not
subject to any judgment, order, writ, injunction or decree of any court or
any
Federal, state, local, foreign or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, or has entered into or is a party to any contract which restricts
or
impairs the use of any such Proprietary Rights in a manner which would have
a
material adverse effect on the use of any of the Proprietary Rights. The Company
has not received written notice of any pending conflict with or infringement
upon such third party proprietary rights.
(xiv)
The
Company has an authorized, issued and outstanding capitalization as set forth
in
the Offering Documents; all of the issued shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and conform to the descriptions thereof contained in the Offering Documents;
and
none of the issued shares of capital stock of the Company has been issued in
violation of any preemptive or similar right. Except as described in the
Offering Documents, there are no outstanding (A) securities or obligations
of
the Company convertible into or exchangeable for any shares of capital stock
of
the Company, (B) warrants, rights or options to subscribe for or purchase from
the Company any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations for the Company to issue such
shares, any such convertible or exchangeable securities or obligations, or
any
such warrants, rights or obligations.
(xv) Except
as
described in the Offering Documents, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right
to require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such person
or
to require the Company to include such securities in the securities being
registered pursuant to any registration statement filed by the Company under
the
Act.
(xvi) The
shares of Common Stock to be issued and sold to Investors as provided in the
Subscription Agreement have been duly authorized and when issued and delivered
against payment therefor, will be validly issued, fully paid and nonassessable
and will conform to the description thereof in the Offering Documents, and
there
are no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Common Stock
issuable to Investors under the Company's Certificate of Incorporation or
by-laws or any agreement or other outstanding instrument to which the Company
is
a party or is otherwise known to the Company.
(xvii) The
Placement Agent’s Shares have has been duly authorized and, when issued and
delivered against payment therefor, will be validly issued, fully paid and
nonassessable; and there are no preemptive or other rights to subscribe for
or
to purchase, nor any restriction upon the voting or transfer of the Placement
Agent’s Shares pursuant to the Company's Certificate of Incorporation or by-laws
or any agreement or other outstanding instrument to which the Company is a
party
or is otherwise known to the Company.
6
(xviii) All
offers and sales of securities of the Company issued prior to the date hereof
were at all relevant times duly registered or exempt from the registration
requirements of the Act or issued in compliance with the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”) and the rules and regulations
thereunder and were duly registered or the subject of an available exemption
from the registration requirements of the applicable state securities or Blue
Sky laws and all applicable securities laws and regulations of any foreign
country in which such securities were offered or sold.
(xix) The
Company is not (A) in violation of its Certificate of Incorporation or by-laws,
(B) in violation of any statute, law, rule, code, administrative regulation,
ordinance, judgment, order or decree of any government, governmental
instrumentality, court, domestic or foreign, or arbitration panel or other
body
applicable to it where such violation would have a Material Adverse Effect
or
(C) in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
voting agreement, voting trust agreement, loan agreement, bond, debenture,
note
or other evidence of indebtedness, lease, sublease, license agreement, contract
or other agreement or instrument to which it is a party or by which it or any
of
its respective properties are bound or affected (“Contracts”), where such
defaults, singly or in the aggregate, would have a Material Adverse Effect.
To
the knowledge of the Company, no other party under any Contract is in default
in
any material respect thereunder which affects the Company.
(xx) The
Company has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement, the Subscription Agreement, the
Registration Rights Agreement and the Escrow Agreement. This Agreement, the
Subscription Agreement, the Registration Rights Agreement and the Escrow
Agreement have been duly and validly authorized, executed and delivered by
the
Company, and each such agreement constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with
its
respective terms, except as rights to indemnity and contribution hereunder
and
thereunder may be limited by the securities laws of the United States and except
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws or equitable principles affecting the enforcement of creditors'
rights generally;
(xxi) The
issuance of the shares of Common Stock and the Placement Agent’s Shares, the
execution, delivery and performance of this Agreement, Subscription Agreement
and the Registration Rights Agreement, the delivery of the Placement Agent’s
Shares, and the consummation of the transactions contemplated hereby and
thereby, do not and will not conflict with or result in a material breach or
violation of any of the terms or provisions of, or constitute a material default
under, or give rise to rights of termination under, or result in the
acceleration of any obligation under, or result in the creation or imposition
of
any lien, charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any indenture, mortgage, deed of trust, voting
agreement, voting trust agreement, loan agreement, bond, debenture, note or
other evidence of indebtedness or result in a material breach or violation
of
any of the terms or provisions of, or constitute a material default under any
lease, sublease, contract or other agreement or instrument to which the Company
is a party or by which the Company or any of its properties or assets are bound
or affected, nor will such action result in any violation of the provisions
of
the Certificate of Incorporation or by-laws of the Company or a material
violation of any applicable statute, law, rule, code, administrative regulation,
ordinance, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or arbitration panel or other
body, having jurisdiction over the Company or any of its properties or
obligations.
(xxii) No
consent, approval, authorization, license or order of or from, or registration,
qualification, declaration or filing with, federal, state, local, foreign or
other governmental authority or any person or court, administrative agency,
or
other body is required for the consummation of the transactions contemplated
in
this Agreement, or the Offering Documents, except as may have been made or
may
be required obtained under FINRA, any federal or state securities laws or Blue
Sky laws or pursuant to Regulation D.
7
(xxiii) The
Company is in compliance in all material respects with all applicable federal,
state and local environmental laws and regulations, including, without
limitation, those applicable to emissions to the environment, waste management
and waste disposal (collectively, the “Environmental Laws”), except for any
noncompliance as may be described in the Offering Documents, and to the best
of
the Company's knowledge, there are no circumstances that would prevent,
interfere with, or materially increase the cost of such compliance in the
future. Except as set forth in the Offering Documents, there is no claim under
any Environmental Law, including common law (“Environmental Claim”), pending or,
to the knowledge of the Company, threatened against or affecting the Company
and, to the best of the Company's knowledge, there are no past or present
actions, activities, circumstances, events or incidents, including, without
limitation, releases of any material into the environment, that could form
the
basis of any Environmental Claim against or affecting the Company or its
Controlled Subsidiaries.
(xxiv) The
Company does not own or lease any real property.
(xxv) The
Company (A) has paid all federal, state, local and foreign taxes for which
it is
liable and has furnished all information returns it is required to furnish
pursuant to the Internal Revenue Code of 1986, as amended, (B) has established
adequate reserves for such taxes which are not due and payable and (C) does
not
have any tax deficiency or claims outstanding, proposed or assessed against
it.
(xxvi) The
Company maintains insurance of the types and in amounts which it deems adequate
for its business, all of which are in full force and effect.
(xxvii)
Other than set forth herein, there are no claims, payments, issuances,
arrangements or understandings, whether oral or written, for services in the
nature of a finder's or origination fee with respect to the sale of the
Units.
(xxviii) Neither
the Company nor, to the best of the Company’s knowledge, any of the Company’s
officers, employees, agents or any other person acting on behalf of, at the
direction of or for the benefit 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 (domestic or foreign) or instrumentality
of
any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who was, is, or may be in a
position to help or hinder the business of the Company (or assist the Company
in
connection with any actual or proposed transaction) which (a) might subject
the
Company or any other such person to any damage or penalty in any civil, criminal
or governmental litigation or proceeding (domestic or foreign), (b) if not
given
in the past, might have had a Material Adverse Effect or (c) if not continued
in
the future, might result in a Material Adverse Effect. The Company's internal
accounting controls are sufficient to cause the Company to comply with the
Foreign Corrupt Practices Act of 1977, as amended.
(xxix) The
Company has not relied on XXX or its legal counsel for any legal, tax or
accounting advice in connection with the Offering.
(xxx) During
the past five years, none of the current officers or directors of the Company
have been:
(a) The
subject of a petition under the federal bankruptcy laws or any state insolvency
law filed by or against them, or by a receiver, fiscal agent or similar officer
appointed by a court for their business or property, or any partnership in
which
any or them was a general partner at or within two years before the time of
such
filing, or any corporation or business association of which any of them was
an
executive officer at or within two years before the time of such
filing;
8
(b) Convicted
in a criminal proceeding or a named subject of a pending criminal proceeding
(excluding traffic violations and other minor offenses);
(c) The
subject of any order, judgment, or decree not subsequently reversed, suspended
or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining any of them from, or otherwise limiting, any of the following
activities:
(i) acting
as
a futures commission merchant, introducing broker, commodity trading advisor,
commodity pool operator, floor broker, leverage transaction merchant, any other
person regulated by the Commodity Futures Trading Commission, or an associated
person of any of the foregoing, or as an investment adviser, underwriter, broker
or dealer in securities, or as an affiliated person, director or employee of
any
investment company, bank, savings and loan association or insurance company,
or
engaging in or continuing any conduct or practice in connection with any such
activity;
(ii)
engaging
in any type of business practice; or
(iii) engaging
in any activity in connection with the purchase or sale of any security or
commodity or in connection with any violation of federal or state securities
law
or federal commodity laws.
(iv) the
subject of any order, judgment or decree, not subsequently reversed, suspended
or vacated of any federal or state authority barring, suspending or otherwise
limiting for more than sixty (60) days their right to engage in any activity
described in paragraph (3)(i) above, or be associated with persons engaged
in
any such activity;
(v) found
by
any court of competent jurisdiction in a civil action or by the SEC to have
violated any federal or state securities law, and the judgment in such civil
action or finding by the SEC has not been subsequently reversed, suspended
or
vacated; or
(vi) found
by
a court of competent jurisdiction in a civil action or by the Commodity Futures
Trading Commission to have violated any federal commodities law, and the
judgment in such civil action or finding by the Commodity Futures Trading
Commission has not been subsequently reversed, suspended or
vacated.
(vii) found
by
a court or an administrative agency to have or is alleged to have violated
any
Canadian or foreign securities laws.
(xxxi) Neither
the Company nor, to the knowledge of the Company, any of its affiliates has,
directly or through any agent, sold, offered for sale or solicited offers to
buy
nor will any of the foregoing directly buy any security of the Company, as
defined in the Act, which is or will be integrated with the sale of the Units
in
a manner that would require the registration, pursuant to the Act, of the
Offering.
(xxxii)
During the period commencing on the date hereof and ending on the Closing Date,
the Company shall not, without prior notice to and consent of the Placement
Agent: (A) issue any securities or incur any liability or obligation, primary
or
contingent, for borrowed money; (B) enter into any transaction not in the
ordinary course of business; or (C) declare or pay any dividend on its capital
stock,
9
(xxxiii)
Neither the Company nor any of its officers, directors, or affiliates, has
engaged or will engage, directly or indirectly, in any act or activity that
may
jeopardize the status of the offering and sale of the Units as an exempt
transaction under the Act or under all applicable federal and/or state
securities or "blue sky" laws of any jurisdiction in which the Units may be
offered or sold.
7. Covenants
of the Company.
The
Company covenants that it will:
(a)
Notify XXX immediately, and confirm such notice in writing, (i) when any event
shall have occurred during the period commencing on the date hereof and ending
on the Closing Date, as a result of which the Offering Documents would include
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, and
(ii)
of the receipt of any notification with respect to the modification, rescission,
withdrawal, or suspension of the qualification or registration of the Units,
or
of an exemption from such registration or qualification, in any jurisdiction.
The Company will use its best efforts to prevent the issuance of any such
modification, rescission, withdrawal, or suspension and if XXX so request,
to
obtain the lifting thereof as promptly as possible.
(b)
Not
make any supplement or amendment to the Offering Documents unless such
supplement or amendment complies with the requirements of the Act and Regulation
D and the applicable federal and/or state securities and "blue sky" laws and
unless XXX shall have approved of such supplement or amendment in writing.
If,
at any time during the period commencing on the date hereof and ending on the
Closing Date, any event shall have occurred as a result of which the Offering
Documents contains any untrue statement of a material fact or omits to state
any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or if, in the opinion of counsel to the Company or
counsel to the Placement Agent, it is necessary at any time to supplement or
amend the Offering Documents to comply with the Act, Regulation D, or any
applicable securities or "blue sky" laws, the Company will promptly prepare
an
appropriate supplement or amendment (in form and substance satisfactory to
XXX)
which will correct such statement or omission or which will effect such
compliance.
(c)
Deliver without charge to the Placement Agent such number of copies of the
Offering Documents and any supplement or amendment thereto as may reasonably
be
requested by the Placement Agent.
(d)
Not,
directly or indirectly, solicit any offer to buy from, or offer to sell to
any
person any Units, except through the Placement Agent.
(e)
Use
its best efforts to qualify the Common Stock for offering and sale under, or
establish an exemption from such qualification or registration under, the
securities or "blue sky" laws of the jurisdictions as may be required by the
Placement Agent; provided, however, that the Company will not be obligated
to
qualify to do business as a dealer in securities in any jurisdiction in which
it
is not so qualified. The Company will not consummate any sale of Common Stock
in
any jurisdiction or in any manner in which such sale may not be lawfully made;
in this regard the Company shall be entitled to rely on the Placement Agent's
representations herein, and the representations of Investors in the Subscription
Agreement and on the Blue Sky qualifications affected by the Placement Agent's
counsel.
(f)
At
all times during the period commencing on the date hereof and ending on the
Closing Date, provide to each Investor or his Purchaser Representative (as
defined in Regulation D), if any, on request, such information (in addition
to
that contained in the Offering Documents) concerning the Offering, the Company
and any other relevant matters, as it possesses or can acquire without
unreasonable effort or expense, and to extend to each Investor or his Purchaser
Representative, if any, the opportunity to ask questions of, and receive answers
from, the President or other Executive Officers of the Company concerning the
terms and conditions of the Offering and the business of the Company and to
obtain any other additional information, to the extent it possesses the same
or
can acquire it without reasonable effort or expense, as such Investor or
Purchaser Representative may consider necessary in making an informed investment
decision or in order to verify the accuracy of the information furnished to
such
Investor or Purchaser Representative, as the case may be.
10
(g)
Provide to each Investor or his Purchase Representative any information required
to be delivered by Rule 502(b) of Regulation D.
(h)
Disclose to each Investor, in writing, any material relationship between such
Investor's Purchaser Representative, if any, or its affiliates, on the one
hand,
and the Company or its affiliates, on the other hand, which, to the knowledge
of
the Company, then exists or is understood to be contemplated or has existed
at
any time during the previous two years and any compensation received or to
be
received as a result of such relationship.
(i)
Notify XXX promptly of the acceptance or rejection of any subscription. The
Company shall not (i) accept subscriptions from, or make sales of Units to,
any
prospective Investors who are not, to the Company's knowledge, accredited
investors, or (ii) unreasonably reject any subscription for Units, provided,
that the Company may reject subscriptions if it, in its sole discretion,
determines that, notwithstanding the lack of a maximum offering amount, it
desires to terminate the Offering when it is satisfied with the total number
of
Units sold.
(j)
Cooperate with Placement Agent's counsel to file five copies of a Notice of
Sales of Securities on Form D with the SEC no later than 15 days after the
sale
of the Units, and/or such documents or certificates as are required by any
particular state “blue sky” law. The Company shall file promptly such amendments
to such Notice on Form D as shall become necessary and, as requested by XXX,
shall also comply with any filing requirement imposed by the laws of any state
or jurisdiction in which offers and sales are made. The Company shall furnish
XXX with copies of all such filings.
(k)
Not,
directly or indirectly, engage in any act or activity which may jeopardize
the
status of the offering and sale of the Units as exempt transactions under the
Act or under the securities or “blue sky” laws of any jurisdiction in which the
Offering may be made. Without limiting the generality of the foregoing, and
notwithstanding anything contained herein to the contrary, the Company shall
not, directly or indirectly, engage in any offering of securities which, if
integrated with the Offering in the manner prescribed by Rule 502(a) of
Regulation D and applicable releases of the SEC, may jeopardize the status
of
the offering and sale of the Units as exempt transactions under Regulation
D.
(l)
Apply
the net proceeds from the sale of the Units as set forth in the PPM.
(m)
Not,
during the period commencing on the date hereof and ending on the Closing Date,
issue any press release or other communication, or hold any press conference
with respect to the Company, its financial condition, results of operations,
business, properties, assets, or liabilities, or the Offering, without XXX’s
prior written consent, except as required by applicable securities laws and
except as may be related to the marketing and sale of its products in the normal
course of business.
(n)
Provide each Investor with a full executed copy of that certain Registration
Rights Agreement by and between the Company and each Investor in the form
attached as an exhibit to the PPM (the “Registration Rights Agreement”) which
agreement will provide that the Company shall file a registration statement
(the
“Registration Statement”) with the SEC within 30 days of the closing of a merger
or other business combination with an operating business (“Merger”) or any other
event pursuant to which the Company ceases to be a “shell company,” and a “blank
check company” as defined under the Exchange Act. Pursuant to the terms of the
Registration Rights Agreement, the Company shall use its best efforts to obtain
an order of effectiveness from the SEC declaring the registration statement
effective as soon as reasonably possible, but in no event later than 150 days
from the closing of a Merger or 180 days if the registration statement is
subject to review and comment from the SEC and to maintain the effectiveness
of
such registration statement until
the
date which is the earlier of (i) at such time that the sale of all Registrable
Securities (as defined in the Registration Rights Agreement) covered thereby
has
been completed, or (ii) at such time that all Registrable Securities covered
thereby may be sold without volume restrictions pursuant to Rule 144.
11
8.
Payment of Expenses.
The
Company shall pay all fees, charges, expenses and disbursements relating to
the
Offering, including, without limitation, all fees, charges, expenses and
disbursements in connection with (a) the preparation, printing, filing,
distribution and mailing of the PPM and any supplement and amendment thereto
and
all other documents relating to the Offering and the purchase, sale and delivery
of the Units, including the cost of all copies thereof; (b) the issuance, sale,
transfer and delivery of the Units, including any transfer or other taxes
payable thereon and the fees of any transfer agent or registrar; (c) the
registration or qualification of the Common Stock for offer and sale under
the
securities laws of such states and other jurisdictions as XXX may designate
(including, without limitation, all filing and registration fees and the
reasonable "blue sky" fees and disbursements of XXX 's counsel); (d) legal
fees
of XXX’s counsel not to exceed $5,000; and (e) printing, mailing, travel and
lodging expenses and other out-of-pocket expenses incurred by XXX in connection
with this Offering; provided, that all out-of-expenses in excess of $200 shall
be subject to the prior approval of the Company, which approval shall not be
unreasonably withheld. Upon XXX 's request, the Company shall provide funds
to
pay all such fees, charges, expenses and disbursements in advance.
9. Conditions
of Placement Agent's Obligations.
The
obligations of the Placement Agent pursuant to this Agreement shall be subject,
in its discretion, to the continuing accuracy of the representations and
warranties of the Company contained herein and in each certificate and document
contemplated under this Agreement to be delivered to the Placement Agent, as
of
the date hereof and as of the Closing Date, with respect to the performance
by
the Company of its obligations hereunder, and to the following
conditions:
(a)
At
the Closing and the Final Closing, the Placement Agent shall have received
the
favorable opinion of Xxxxxxx Xxxxxxxxx & Xxxxx LLP, counsel for the Company,
dated each Closing Date, addressed to the Placement Agent and the investors,
and
in form and scope satisfactory to counsel for the Placement Agent, to the effect
that:
(i)
the
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, with full corporate power and authority
to own, lease, license, and use its properties and assets and to conduct its
business in the manner described in the Offering Documents and is duly qualified
to do business and is in good standing as a foreign corporation in every
jurisdiction in which its ownership, leasing, licensing, or use of property
and
assets or the conduct of its business makes such qualification necessary (except
where the failure to so qualify would not have a material adverse effect upon
the Company or its business);
12
(ii)
the
Company has, as of the date hereof, an authorized, and, to such counsel's
knowledge, outstanding capitalization as set forth in the PPM. Each issued
and
outstanding share of Common Stock is validly authorized, validly issued, fully
paid, and nonassessable, with no personal liability attaching to the ownership
thereof solely by being such a holder to such counsel's knowledge or as set
forth on a schedule hereto has not been issued and is not owned or held in
violation of any preemptive right of stockholders;
(iii)
the
Company has all requisite corporate power and authority to execute, deliver,
and
perform this Agreement, and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed, and delivered by the Company,
is the legal, valid, and binding obligation of the Company, and is enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application now or hereafter in effect relating to
or
affecting the enforcement of creditors' right generally and the application
of
general equitable principles in any action, legal or equitable and then except,
as to those provisions relating to indemnity or contribution, such opinion
shall
be limited as effected by any Federal or state securities laws regarding
indemnity and/or contribution; and
(iv)
assuming that (a) a proper Form D is filed in accordance with Rule 503 of
Regulation D, (b) that the offer and the sale of the Units by the Placement
Agent was made in compliance with Rule 506 of Regulation D and that the
Placement Agent's representations and warranties set forth herein are true
and
correct, and (c) that the representations of the Investors in the Subscription
Agreements signed by them are true and correct (which facts will not be
independently verified by such counsel), the sale of Securities in the Offering
is exempt from registration under the Securities Act of 1933 and is in
compliance with Regulation D;
In
rendering such opinion, counsel for the Company may rely (A) as to matters
of
fact, on certificates of responsible officers of the Company; and (B) to the
extent they deem proper, upon written statements or certificates of officers
of
departments of various jurisdictions having custody of documents respecting
the
corporate existence or good standing of the Company, provided that copies of
any
such statements or certificates shall be delivered to counsel for the Placement
Agent.
(a)
On or
prior to the Closing Date the Placement Agent shall have been furnished such
information, documents, certificates, and opinions as it may reasonably require
for the purpose of enabling it to review the matters referred to in Section
6,
and in order to evidence the accuracy, completeness, or satisfaction of any
of
the representations, warranties, covenants, agreements, or conditions herein
contained, or as it may otherwise reasonably request.
(b)
At
the Closing, the Placement Agent shall have received a certificate of the
President and of the Chief Financial Officer of the Company, dated as of the
Closing Date to the effect that, as of the date of this Agreement and as of
the
Closing Date the representations and warranties of the Company contained herein
were and are accurate, and that as of the Closing Date the obligations to be
performed by the Company hereunder on or prior thereto have been fully
performed. Notwithstanding the foregoing, the Company hereby represents and
warrants that at the Closing, the representations and warranties contained
herein shall be true and correct in all respects.
(c)
All
proceedings taken in connection with the issuance, sale, and delivery of the
Units shall be satisfactory in form and substance to XXX and XXX’s
counsel.
(d)
There
shall not have occurred after the date hereof, at any time prior to each
Closing: (A) any domestic or international event, act, or occurrence which
has
materially disrupted, or in XXX’s opinion will in the immediate future
materially disrupt the securities markets; (B) a general suspension of, or
a
general limitation on prices for, trading in securities on any national
securities exchange or the over-the-counter market; (C) any banking moratorium
declared by a state or federal authority; (D) any material interruption in
the
mail service or other means of communication within the United States; or (E)
any change in the market for securities in general or in political, financial,
or economic conditions which, in XXX’s judgment, makes it inadvisable to proceed
with the offering, sale, and delivery of the Units.
13
Any
certificate or other document signed by any officer of the Company and delivered
to XXX or to XXX’s counsel at the Closing shall be deemed a representation and
warranty by the Company hereunder as to the statements made therein. If any
condition to XXX obligations hereunder has not been fulfilled as and when
required to be so fulfilled, XXX may terminate this Agreement or, if XXX so
elects, in writing waive any such conditions which have not been fulfilled
or
extend the time for their fulfillment. In the event that XXX elects to terminate
this Agreement, XXX shall notify the Company of such election in writing. Upon
such termination, neither party shall have any further liability or obligation
to the other except as provided in Section 11 hereof.
10. Conditions
of Company's Obligations.
The
obligations of the Company pursuant to this Agreement shall be subject, in
its
discretion, to the performance by the Placement Agent in all material respects
of its obligations hereunder and to the continuing accuracy of the
representations and warranties of the Placement Agent contained
herein.
11. Termination.
(a)
This
Agreement is effective upon the date hereof and shall remain in effect until
(i)
the Closing Date, or (ii) the earlier termination as herein provided. The
Agreement may be terminated as follows:
(i)
by
either Party at any time prior to the expiration of the Offering Period in
the
event that the other shall have failed to perform any of its material
obligations hereunder. In the event of any such termination by the Company,
the
Placement Agent shall not be entitled to any amounts whatsoever except as may
be
due under any indemnity or contribution obligation provided herein or any of
the
Offering Documents, at law or otherwise.
(ii)
upon
mutual agreement of the
Company and Placement Agent at
any
time prior to the expiration of the Offering Period.
(b)
Before
any termination by the Placement Agent or by the Company pursuant to this
Section 11 shall become effective, the terminating party shall give written
notice to the other party of its intention to terminate the Agreement (the
“Termination Notice”). The Termination Notice shall specify the grounds for the
proposed termination. If the specified grounds for termination, or their
resulting adverse effect on the transactions contemplated hereby, are curable,
then the other party shall have ten (10) days from the Termination Notice within
which to remove such grounds or to eliminate all of their material adverse
effects on the transactions contemplated hereby; otherwise, the Offering shall
terminate.
(c)
Upon
any termination pursuant to this Section 11, the Placement Agent and the Company
shall instruct the Escrow Agent to cause all monies received with respect to
the
subscriptions for Units not accepted by the Company to be promptly returned
to
such Investors without interest, penalty, expense or deduction. The Company
shall be responsible for any outstanding fees owed to the Escrow
Agent.
14
(d)
Neither party shall have any liability or continuing obligation to the other
upon termination of this Agreement in accordance with paragraph 11 except that,
regardless of which party elects to terminate, (i) the Company agrees to
reimburse the Placement Agent for, or otherwise pay and bear, the expenses
and
fees to be paid and borne by the Company as provided for in paragraph 8 above
and to reimburse the Placement Agent for the full amount of its actual
out-of-pocket expenses for which it is responsible pursuant to the terms hereof
(which shall include, without limitation, the fees and disbursements of the
Placement Agent's counsel, travel and lodging expenses, mailing, printing and
reproduction expenses, and any expenses reasonably incurred by the Placement
Agent in conducting its due diligence) less amounts previously paid to the
Placement Agent in reimbursement for such expenses and the advance against
expenses delivered upon the execution of this Agreement, and (ii) the provisions
of paragraph 13 and the Indemnification Provisions in paragraph 12 shall remain
in full force and effect; provided further, that in the event the Company
terminates this agreement, except as otherwise provided herein, prior to the
consummation of the Offering, and within 90 days from the date of such
termination, consummates any financing, merger, acquisition or like transaction
introduced to, or considered by, the Company, during the term hereof, the
Placement Agent shall be entitled to receive an amount equal to 10% of the
aggregate amount of such financing. In the event the Placement Agent arranges
the sale of any securities under this Agreement, paragraphs 4, 5, 6, 7, 8,
12,
13, 14 and 15 shall survive the termination of this Agreement.
12.
Indemnification and Contribution.
(a)
The
Company agrees to indemnify and hold harmless the Placement Agent, its officers,
directors, partners, employees, agents, and counsel, and each person, if any,
who controls the Placement Agent within the meaning of Section 15 of the Act
or
Section 20(a) of the Exchange Act, against any and all loss, liability, claim,
damage, and expense whatsoever (which shall include, for all purposes of this
Section 12, but not be limited to, attorneys' fees and any and all expense
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever and any and all
amounts paid in settlement of any claim or litigation) as and when incurred
arising primarily and directly out of, based upon, or in connection with (i)
any
untrue statement or alleged untrue statement of a material fact contained in
the
Offering Documents or in any document delivered or written statement made
pursuant to Section 7(f) in any application or other document or communication
(it being understood that neither the Company nor any officer, director or
employee shall provide any information to any prospective Investor which is
not
contained in the Offering Documents) (in this Section 12 collectively called
an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to register or qualify the Units under the "blue sky" or securities
laws thereof or in order to secure an exemption from such registration or
qualification or filed with the SEC; or any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made
in
reliance upon and in conformity with written information furnished to the
Company as stated in Section 12(b) with respect to the Placement Agent expressly
for inclusion in the Offering Documents or in any application, as the case
may
be; or (ii) any breach of any representation, warranty, covenant, or agreement
of the Company contained in this Agreement. The foregoing agreement to indemnify
shall be in addition to any liability the Company may otherwise have, including
liabilities arising under this Agreement.
If
any
action is brought against the Placement Agent or any of its officers, directors,
partners, employees, agent, or counsel, or any controlling persons of the
Placement Agent (an "indemnified party"), in respect of which indemnity may
be
sought against the Company pursuant to the foregoing paragraph, such indemnified
party or parties shall promptly notify the Company (the "indemnifying party")
in
writing of the institution of such action (but the failure so to notify shall
not relieve the indemnifying party from any liability it may have other than
pursuant to this Section 12(a)) and the indemnifying party shall promptly assume
the defense of such action, including the employment of counsel (reasonably
satisfactory to such indemnified party or parties) and payment of expenses.
Such
indemnified party shall have the right to employ its own counsel in any such
case, but the fees and expense of such counsel shall be at the expense of such
indemnified party unless the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the defense
of such action or the indemnifying party shall not have promptly employed
counsel satisfactory to such indemnified party or parties to have charge of
the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be one or more legal defenses available
to
it or them or to other indemnified parties which are different from or
additional to those available to one or more of the indemnifying parties, in
any
of which events such fees and expenses of one such counsel shall be borne by
the
indemnifying party and the indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties.
Anything in this paragraph to the contrary notwithstanding, the indemnifying
party shall not be liable for any settlement of any such claim or action
effected without its written consent. The Company agrees promptly to notify
the
Placement Agent of the commencement of any litigation or proceedings against
the
Company or any of its officers or directors in connection with the sale of
the
Units, the Offering Documents, or any application.
15
(b)
The
Placement Agent agrees to indemnify and hold harmless the Company, its officers,
directors, employees, agents, and counsel, and each other person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Placement Agent in Section 12(a), with respect to any and
all
loss, liability, claim, damage, and expense whatsoever (which shall include,
for
all purposes of this Section 12, but not be limited to, attorneys' fees and
any
and all expense whatsoever incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever and
any
and all amounts paid in settlement of any claim or litigation) as and when
incurred arising out of, based upon, or in connection with (i) statements or
omissions, if any, made in the Offering Documents in reliance upon and in
conformity with written information furnished to the Company as stated in this
Section 12 with respect to the Placement Agent expressly for inclusion in the
Offering Documents, and (ii) the failure of the Placement Agent to comply with
the provisions of Section 2(c) hereof or with the "blue sky" or securities
laws
of the jurisdictions in which the Placement Agent solicits offers to buy or
offers to sell any Units or any breach of any representation, warranty, covenant
or agreement of the Placement Agent contained in this Agreement. The foregoing
agreement to indemnify shall be in addition to any liability the Placement
Agent
may otherwise have, including liabilities arising under this Agreement. If
any
action shall be brought against the Company or any other person so indemnified
and in respect of which indemnity may be sought against the Placement Agent
pursuant to this Section 12, the Placement Agent shall have the rights and
duties given to the indemnifying party, and the Company and each other person
so
indemnified shall have the rights and duties given to the indemnified parties,
by the provisions of Section 12(a) hereof.
(c)
To
provide for just and equitable contribution, if (i) an indemnified party makes
a
claim for indemnification pursuant to Section 12(a) or 12(b) hereof but it
is
found in a final judicial determination, not subject to further appeal, that
such indemnification may not be enforced in such case, even though this
Agreement expressly provides for indemnification in such case, or (ii) any
indemnified or indemnifying party seeks contribution under the Act, the Exchange
Act, or otherwise, then the Company (including for this purpose any contribution
made by or on behalf of any officer, director, employee, agent, or counsel
of
the Company, or any controlling person of the Company), on the one hand, and
the
Placement Agent (including for this purpose any contribution by or on behalf
of
an indemnified party), on the other hand, shall contribute to the losses,
liabilities, claims, damages, and expenses whatsoever to which any of them
may
be subject, in such proportions as are appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Placement Agent,
on
the other hand; provided, however, that if applicable law does not permit such
allocation, then other relevant equitable considerations such as the relative
fault of the Company and the Placement Agent in connection with the facts which
resulted in such losses, liabilities, claims, damages, and expenses shall also
be considered. The relative benefits received by the Company, on the one hand,
and the Placement Agent, on the other hand, shall be deemed to be in the same
proportion as (x) the total proceeds from the Offering (net of compensation
payable to the Placement Agent pursuant to Section 5(a) hereof but before
deducting expenses) received by the Company, and (y) the compensation received
by the Placement Agent pursuant to Section 5(a) hereof.
16
The
relative fault, in the case of an untrue statement, alleged untrue statement,
omission, or alleged omission, shall be determined by, among other things,
whether such statement, alleged statement, omission, or alleged omission relates
to information supplied by the Company or by the Placement Agent, and the
parties' relative intent, knowledge, access to information, and opportunity
to
correct or prevent such statement, alleged statement, omission, or alleged
omission. The Company and the Placement Agent agree that it would be unjust
and
inequitable if the respective obligations of the Company and the Placement
Agent
for contribution were determined by pro rata or per capita allocation of the
aggregate losses, liabilities, claims, damages, and expenses or by any other
method of allocation that does not reflect the equitable considerations referred
to in this Section 12(c). In no case shall the Placement Agent by responsible
for a portion of the contribution obligation in excess of the Placement Agent’s
Compensation received pursuant to Section 5(a) hereof. No person guilty of
a
fraudulent misrepresentation shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation. For purposes of this
Section 12(c), each person, if any, who controls the Placement Agent within
the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
officer, director, partners, employee, agent, and counsel of the Placement
Agent, shall have the same rights to contribution as the Placement Agent, and
each person, if any, who controls the Company within the meaning of Section
15
of the Act or Section 20(a) of the Exchange Act and each officer, director,
employee, agent, and counsel of the Company, shall have the same rights to
contribution as the Company, subject in each case to the provisions of this
Section 12(c). Anything in this Section 12(c) to the contrary notwithstanding,
no party shall be liable for contribution with respect to the settlement of
any
claim or action effected without its written consent. This Section 12(c) is
intended to supersede any right to contribution under the Act, the Exchange
Act,
or otherwise.
(d) Survival
of Indemnities, Representations, Warranties, etc.
The
respective representations and warranties of XXX and the Company as set forth
in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or
on
behalf of XXX, the Company, or any of the officers or directors of the Company
or any controlling person, and shall survive delivery of and payment for the
Units.
13. Non-Solicitation.
The
Company agrees that, for a period of one year from the date hereof, it shall
not
solicit any offer to buy from or offer to sell any person introduced to the
Company by the Placement Agent in connection with the Offering, directly or
indirectly, any securities of the Company or of any other entity, or provide
the
name of any such person to any other securities broker or dealer or selling
agent. In the event that the Company, directly or indirectly, solicits, offers
to buy from or offers to sell to any such person any such securities, or
provides the name of any such person to any other securities broker or dealer
or
selling agent, and such person purchases such securities or purchases securities
from any other securities broker or dealer or selling agent, the Company shall
pay to the Placement Agent an amount equal to 10% of the aggregate purchase
price of the securities so purchased by such person.
17
14. Representations
and Agreements to Survive Delivery.
All
representations, warranties, covenants, and agreements contained in this
Agreement shall be deemed to be representations, warranties, covenants, and
agreements at the Closing Date and, such representations, warranties, covenants,
and agreements, including the indemnification and contribution agreements
contained in Section 12, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Placement Agent
or
any indemnified person, or by or on behalf of the Company or any person or
entity which is entitled to be indemnified under Section 12(b), and shall
survive termination of this Agreement or the issuance, sale, and delivery of
the
Units. In addition, notwithstanding any election hereunder or any termination
of
this Agreement, and whether or not the terms of this Agreement are otherwise
carried out, the provisions of Sections 6, 7(a), 7(c), 10 and 12 shall survive
termination of this Agreement and shall not be affected in any way by such
election or termination or failure to carry out the terms of this Agreement
or
any part thereof.
15.
Notices.
All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing and, if sent to the Placement Agent, shall be mailed
by certified mail, hand delivered, or sent by overnight courier service, to
XXX,
Placement Agent’s address, Attention: YYY, with a copy to XXX’s legal counsel,
Address, Attention: ZZZ; or if sent to the Company, Vision Acquisition II,
Inc.,
00 Xxxx 00xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, XX 00000, Attention: Antti William Uusiheimala, with a copy to Xxxxxxx
Xxxxxxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000;
Attention: Xxxxx Xxxxxxx, Esq. All notices hereunder shall be effective upon
receipt by the party to which it is addressed.
16.
Parties; Assignment.
This
Agreement shall inure solely to the benefit of, and shall be binding upon,
the
Placement Agent and the Company and the persons and entities referred to in
Section 12 who are entitled to indemnification or contribution, and their
respective successors, legal representatives, and permitted assigns (which
shall
not include any purchaser, as such, of Units), and no other person shall have
or
be construed to have any legal or equitable right remedy, or claim under or
in
respect of or by virtue of this Agreement or any provision herein contained.
This Agreement may not be assigned by the Placement Agent except upon the prior
written consent of the Company.
17.
Construction.
This
Agreement shall be construed in accordance with the laws of the State of New
York, without giving effect to conflict of laws. Any or all actions or
proceedings which may be brought by the Company or XXX under this Agreement
shall be brought in the federal or state courts having a situs within the State
of New York, New York County, and the Company and XXX each hereby consent to
the
jurisdiction of any local, state, or federal court located within the State
of
New York, New York County and waive all objections to venue.
18.
Entire Agreement.
This
Agreement supersedes all prior agreement between the parties with respect to
the
Units to be offered and sold hereunder and with the subject matter
hereof.
18
| 19. |
Severability.
|
If
any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future laws, such provision shall be fully severable.
This
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect
and
shall not be affected by the illegal, invalid or unenforceable provision or
by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid or unenforceable provision there shall be deemed added automatically
as
a part of this Agreement a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible to cause such provision
to
be legal, valid and enforceable.
| 20. |
Headings.
|
The
captions and headings used in this Agreement are for convenience only and do
not
in any way affect, limit, amplify or modify the terms and provisions of this
Agreement.
| 21. |
Modification;
Performance; Waiver.
|
No
provision of this Agreement may be changed or terminated except by a writing
signed by the party or parties to be charged therewith. Unless expressly so
provided, no party to this Agreement will be liable for the performance of
any
other party’s obligations hereunder. Any party hereto may waive compliance by
the other with any of the terms, provisions and conditions set forth herein;
provided,
however,
that
any such waiver shall be in writing specifically setting forth those provisions
waived thereby. No such waiver shall be deemed to constitute or imply waiver
of
any other term, provision or condition of this Agreement.
22.
Counterparts.
This
Agreement may be executed in counterparts, each of which shall constitute an
original and all of which, when taken together, shall constitute one
agreement.
[Remainder
of Page Intentionally Left Blank]
19
If
the
foregoing correctly sets forth the understanding between us, please so indicate
in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement among us.
| Very truly yours, | ||
| VISION ACQUISITION II, INC. | ||
| |
|
|
| By: | /s/ Antti William Uusiheimala | |
|
Name: Antti William Uusiheimala |
||
| Title: President | ||
Accepted
as of the date
first
above written:
XXX
| By: |
/s/
YYY
|
| Name: YYY |
| Title: President |
20
