Exhibit 10.1
VISION ACQUISITION III, INC.
Private Placement of Units
PLACEMENT AGENCY AGREEMENT
VISION ACQUISITION III, INC.
Private Placement of Units
PLACEMENT AGENCY AGREEMENT
Dated as of March 19, 2008
▇▇▇▇▇▇ Associates L.P.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Vision Acquisition III, 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 ▇▇▇▇▇▇ Associates L.P. acting as our
exclusive placement agent (the "Placement Agent" or "▇▇▇▇▇▇") 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 ▇▇▇▇▇▇ Associates L.P. 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 ▇▇▇▇▇▇'
obligations hereunder are not on a firm commitment basis and that the execution
of this Agreement does not constitute a commitment by ▇▇▇▇▇▇ to purchase the
Units and does not ensure the successful placement of the Units or any portion
thereof. Further, ▇▇▇▇▇▇' 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, ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ 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.
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(f) ▇▇▇▇▇▇ may engage other persons selected by ▇▇▇▇▇▇ to
assist ▇▇▇▇▇▇ in the Offering (each such broker/dealers being hereinafter
referred to as a "Selling Group Member") and ▇▇▇▇▇▇ may allow such Selling Group
Member such part of the compensation and payment of expenses payable to ▇▇▇▇▇▇
under Section 5 hereof as ▇▇▇▇▇▇ 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.
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 ▇▇▇▇▇▇' 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").
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(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.
(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.
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(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.
(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, ▇▇▇▇▇▇ acknowledges that as a shell company, its
ability to continue as a going concern is in question.
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(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.
(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
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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.
(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
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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.
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(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.
(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
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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 ▇▇▇▇▇▇ 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;
(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
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(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,
(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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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
11
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 ▇▇▇▇▇▇) 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.
(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.
12
(i) Notify ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇' 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
13
(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.
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 ▇▇▇▇▇▇ may designate (including, without limitation, all filing and
registration fees and the reasonable "blue sky" fees and disbursements of
▇▇▇▇▇▇'▇ counsel); (d) legal fees of ▇▇▇▇▇'▇ counsel not to exceed $5,000; and
(e) printing, mailing, travel and lodging expenses and other out-of-pocket
expenses incurred by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇
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) 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 ▇▇▇▇▇▇ and ▇▇▇▇▇▇ counsel.
14
(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 ▇▇▇▇▇▇' 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 ▇▇▇▇▇▇' judgment, makes
it inadvisable to proceed with the offering, sale, and delivery of the Units.
Any certificate or other document signed by any officer of the
Company and delivered to ▇▇▇▇▇▇ or to ▇▇▇▇▇▇' 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 ▇▇▇▇▇▇ obligations hereunder has
not been fulfilled as and when required to be so fulfilled, ▇▇▇▇▇▇ may terminate
this Agreement or, if ▇▇▇▇▇▇ so elects, in writing waive any such conditions
which have not been fulfilled or extend the time for their fulfillment. In the
event that ▇▇▇▇▇▇ elects to terminate this Agreement, ▇▇▇▇▇▇ 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
15
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.
(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
16
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.
(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
17
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.
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)
18
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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, 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.
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.
19
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 ▇▇▇▇▇▇ Associates L.P. ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; or
if sent to the Company, Vision Acquisition III, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Antti William Uusiheimala, with a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇; Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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.
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
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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]
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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 III, INC.
By: _____________________________________
Name: Antti William Uusiheimala
Title: President
Accepted as of the date
first above written:
▇▇▇▇▇▇ Associates L.P.
By: ______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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