Placement Agent Agreements (Attached.)
Exhibit
9(b)
(Attached.)
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DIRECT
ACCESS PARTNERS
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212.850.8888 F 212.850.8898
CONFIDENTIAL
July 20,
2009
▇▇. ▇▇▇▇▇
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Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
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Dear ▇▇.
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This
letter (the "Agreement") will confirm the engagement of Direct Access Partners,
with corporate offices located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Placement Agent"), by Blackhawk Capital Group BDC, Inc., a
Delaware corporation and a business development company registered under the
Investment Company Act of 1940, as amended (the "Company"), as placement agent
in connection with the Company's Rule 506 offering under Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
$250,000,000.00 in common stock ("Securities" or “Shares”) to qualified
institutional buyers ("QIBs") and "accredited investors" (as those terms are
defined under the Securities Act) (the "Investors"). The Offering
will be pursuant to a Confidential Private Placement Memorandum dated July 7,
2009 (“Memorandum”) and a subscription agreement and purchase questionnaire
("Subscription Agreement"). The maximum amount to be raised in the
Offering is $250,000,000.00 (and 50,000,000 Shares have been
sold). There is no minimum requirement for the sale of Shares by the
Company. Closings will occur upon receipt of funds as
received. Investors must be advised that there is no minimum amount
of subscriptions that must be raised in the Offering before the initial closing
or any “rolling” closing can take place. Funds will be placed into an
escrow account prior to any closing. The Company reserves the right
to lower the minimum or increase the maximum at its sole
discretion. The purchase price shall be $5.00 per Share.
1. Scope of
Placement Agent's Services. Placement Agent will assist in the
distribution of Offering Materials (as hereinafter defined) to potential
investors, report to the Company on the status of potential investors, assist in
consummating the Offering, and perform such other services, as necessary and as
requested by the Company, including, but not limited to:
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(a)
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familiarizing
itself to the extent it deems appropriate and feasible with the business
operations, financial condition, and prospects of the
Company,
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(b)
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screening
and contacting prospective investors,
and
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(c)
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assisting
in negotiations with prospective
investors.
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It is
understood by both parties that Placement Agent intends to solicit interest from
a limited number of potential Investors (QIBs and accredited
investors). Placement Agent will, in its sole discretion, determine
the reasonableness of their efforts and are under no obligation to perform at
any level other than what each deems reasonable. The Company shall
retain control of the Offering and shall have the right to determine (a) whether
to accept and close the sale of the Securities to a specific Investor, (b)
whether to close or terminate the Offering, and (c) the content of the Offering
Materials.
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2. Fees. In return for
Placement Agent's services in the placement of Securities, the Company will pay
Placement Agent a cash fee equal to five percent (5%) of the gross proceeds (the
"Financing Fee") of any Securities placed by Placement Agent. Any
Financing Fees payable to Placement Agent will be due at the closing date of the
Offering and shall be payable to Placement Agent by the
Company. Placement Agent shall not be entitled to receive the
reimbursement of any expenses from the Company.
3. Term. Unless extended
or earlier terminated by mutual agreement in writing of the parties, the term of
this Agreement shall commence July 20, 2009 and terminate on the earliest to
occur of: (i) ten (10) calendar days after written notice given to
the Company by Placement Agent of a potential Investor purchasing at least
50,000,000 Shares that will close on the purchase of Shares within five (5)
calendar days of the date of such written notice; (ii) 180 calendar days from
July 20, 2009; (iii) the date of closing and funding by any Investor of a
Subscription Agreement for a minimum of 50,000,000 Shares (the "Term"); or (iv)
ten (10) calendar days after written notice given to Placement Agent by the
Company that the Offering will be closed at the sole discretion of the
Company. Upon any termination or expiration of this Agreement,
neither the Company nor a potential Placement Investor shall have any obligation
or liability to any other party under this Agreement. For a period of
180 calendar days from July 20, 2009 ("Period"), Placement Agent shall have the
non-exclusive right on behalf of the Company to solicit prospective Investors
who are QIBs and/or accredited investors regarding the possible sale to such
Investors of Shares. During the Period, Placement Agent shall not
have the right to conduct any other discussions on behalf of the Company
regarding any matter other than the sale of the Shares to the prospective
Investors. For purposes of clarification, the Company during the
Period shall deal on a non-exclusive basis with Placement Agent concerning the
sale of the Shares.
For a
period up to one year from the termination of this Agreement and if Placement
Agent enters into a selling group of any subsequent securities offerings of the
Company, then Placement Agent shall receive additional financing fees
("Additional Fees") if the Company sells securities to those Investors
previously introduced by Placement Agent ("Protected
Investors"). Prior to the termination date, Placement Agent will
furnish the Company with a written list of the Protected
Investors. The Additional Fees will be equal to any underwriting or
placement fees that are listed in any future offering circular or
prospectus.
4. Company
Information. The Company will
furnish Placement Agent such information concerning the Company as Placement
Agent reasonable determine to be appropriate with respect to the Offering
("Information"). The Company shall afford Placement Agent and its
counsel and representatives full and complete access to its books and records
and will use commercially reasonable efforts to afford Placement Agent with full
and complete cooperation of management to gather the Information on a reasonable
basis. The Company recognizes and confirms that Placement Agent (a)
will use and rely on the Information in performing the services contemplated by
this Agreement, without independently verifying the accuracy and completeness of
the same, (b) does not assume responsibility for the accuracy or completeness of
the Information, and (c) will not make an appraisal of any assets or liability
of the Company.
The
Company hereby represents to Placement Agent that all solicitation materials
prepared by the Company and used in connection with the Offering, including,
without limitation, the Confidential Private Placement Memorandum (the "Offering
Materials") will not, as of the date of any offer or sale in connection with the
Offering, contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein, not misleading, in
light of the circumstances under which they were made. If at any time
an event occurs as a result of which the Offering Materials, as then amended or
supplemented, would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made when such Offering Materials are
delivered to a prospective purchaser pursuant hereto, not misleading, the
Company will promptly notify Placement Agent to suspend solicitation of
prospective purchasers in connection with the Offering; and if the Company
decides to amend or supplement the Offering Materials, it will promptly advise
Placement Agent by telephone (with confirmation in writing) and will promptly
prepare an amendment or supplement that will correct such statement or
omission.
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Placement
Agent will not violate, or cause the Company to violate, any applicable federal
and state securities laws in connection with the Offering.
5. Confidentiality. In connection
with this engagement, it is contemplated that Placement Agent will receive from
the Company certain information (including certain business planning,
investment, product, marketing, technical, financial, and other information and
materials) the Company considers confidential. Placement Agent shall
use this confidential information solely for the purpose of providing services
to the Company and will not disclose to any party (other than Placement Agent's
officers, directors, employees, affiliates, and counsel who have a need to know
such information, herein “Representatives”) any such confidential information,
except with the prior written approval of the Company; provided, however, that
the foregoing restrictions shall not apply to any information that: (a) is
included in the Offering Materials and disclosed pursuant to the distribution of
the Offering Materials as permitted by the Company, (b) the Company consents to
having disclosed in connection with the Offering, (c) is publicly available when
provided or thereafter becomes publicly available other than through disclosure
by Placement Agent or its Representatives, or (d) is required to be disclosed by
Placement Agent by judicial or administrative process in connection with any
action, suit, proceeding, or investigation; and provided, further, however, that
Placement Agent shall give the Company notice of any such requirement
immediately upon the becoming aware of same and shall not disclose such
information except only to the extent required after the maximum time
permitted. Information shall be deemed “publicly available” if it
becomes a matter of public knowledge or is contained in materials available to
the public or is obtained by Placement Agent from any source other than the
Company or its representatives, provided that such source was not to Placement
Agent's actual knowledge subject to a confidentiality agreement with the
Company. Placement Agent will take reasonable steps to assure that
the Offering Materials are not distributed to any persons not permitted to
receive them pursuant to the terms hereof. Placement Agent will not
provide any confidential information to prospective Investors or any other third
party without the express written consent of the Company unless the prospective
Investor has executed a confidentiality agreement acceptable to the
Company.
6. Representations
and Warranties of Placement Agent. (a) Placement Agent is a
broker-dealer registered with the SEC and FINRA; (b) there are no judgments,
orders, decrees, or like actions, or any proceedings pending, before the SEC,
FINRA, any State, or any court or arbitration panel that prohibit or affect it
from carrying out its obligations under this Agreement; and (c) this Agreement
has been duly authorized and approved by Placement Agent, does not contravene
its organizational documents or any agreement or order to which it is a party,
and is a legal and valid obligation binding on Placement Agent.
7. Indemnification. The Company
acknowledges that Placement Agent will be acting on behalf of the Company and
will require indemnification by the Company. The Company further
acknowledges that Placement Agent's indemnification provisions attached hereto
as Exhibit A are
incorporated by reference herein or are made a part hereof for all purposes as
though set forth entirely herein.
8. Miscellaneous. The Offering will
be completed in accordance with Rule 506 under Regulation D under the Securities
Act and all applicable state or other jurisdictional securities laws (i.e. "blue
sky" laws). All prospective Investors will be persons who qualify as
QIBs and/or accredited investors under all applicable federal and state
securities laws and who execute a Subscription Agreement.
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The
Company shall have the right to identify Investors with which it has
affiliations who would be suitable QIBs and/or accredited investors for the
Offering ("Company-Introduced Investors"). In the event that the Company decides
that these Investors are suitable for the Offering and these Investors purchase
Securities in the Offering, no fees shall be due to Placement Agent respecting
Securities purchased by Company-Introduced Investors pursuant to Section 2
above.
The
Company agrees that, following the closing of the Offering, Placement Agent and
shall have the right to place advertisements in financial and other newspapers
and journals at their own expense describing its services to the Company
hereunder, provided that Placement Agent will submit a copy of any such
advertisement to the Company for its approval, which approval shall not be
unreasonably withheld or delayed, and that such action is not in violation of
Rule 506 under Regulation D or other federal and state securities
laws.
The
parties agree that their relationship under this Agreement is an advisory
relationship only, and nothing herein shall cause Placement Agent to be
partners, agents or fiduciaries of, or joint venture partners with, the
Company.
This
Agreement may not be amended or modified except in writing and shall be governed
by, and construed in accordance with the laws of the State of New
York.
If this
Agreement reflects our mutual understanding, please execute two copies in the
space indicated below and return one to us.
Very
truly yours,
DIRECT
ACCESS PARTNERS
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/s/ ▇▇▇▇▇▇ ▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
C.R.C.P.
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Title:
CFO/COMP
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BLACKHAWK
CAPITAL GROUP BDC, INC.
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/s/
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Chairman
of the Board, President & Chief Executive
Officer
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Exhibit
A
Indemnification
Blackhawk
Capital Group BDC, Inc., a Delaware corporation and a business development
company registered under the Investment Company Act of 1940, as amended (the
"Company"), agrees to indemnify and hold harmless Direct Access Partners
("Placement Agent") together with its affiliates, directors, officers, agents,
and employees (Placement Agent each such entity or person, an "Indemnified
Person"), from and against any and all losses, claims, damages, judgments, and
liabilities, expenses, or costs (and all actions in respect thereof and any
legal or other expenses in giving testimony or furnishing documents in response
to a subpoena or otherwise), including the cost of investigating, preparing for,
or defending any such action or claim, whether or not in connection with
litigation in which an Indemnified Person is a party, as and when incurred,
directly or indirectly caused by, relating to, based upon, or arising out of
Placement Agent's performance of its engagement by the Company under the letter
agreement dated as of July 20, 2009, as it may be amended from time to time (the
"Agreement"), or otherwise arising out of or in connection with advice or
services provided or to be provided by Indemnified Persons pursuant to the
Agreement, the transactions contemplated thereby, or any Indemnified Person’s
actions or inactions in connection with any such advice, services, or
transactions, including any indemnified person's sole or contributory
negligence, if such activities were performed (i) in good faith and (ii) in such
manner reasonably believed by such Indemnified Person to be within the scope of
the authority conferred by the Agreement or by law and to be on behalf of the
Company or in furtherance of the performance of Placement Agent's services under
the Agreement; provided, however, such indemnity agreement shall not apply to
any such loss, claim, damage, liability, or cost incurred by any Indemnified
Person to the extent it is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from the gross negligence or willful misconduct or bad faith of such
Indemnified Person. The Company also agrees that no Indemnified
Person shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to the Company for or in connection with the any advice or
services provided by any Indemnified Persons in connection with the Agreement,
the transactions contemplated by the Agreement, or any Indemnified Persons’
actions or inactions in connection with any such advice, services, or
transactions except for any such liability for losses, claims, damages,
liabilities, or costs found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from such Indemnified Person’s gross negligence or willful misconduct
or bad faith in connection with such advice, actions, inactions, or
services.
These
Indemnification Provisions shall be in addition to any liability that the
Company may otherwise have to any Indemnified Person and shall extend to the
following: Placement Agent, its affiliated entities, directors, officers,
employees, agents, legal counsel and controlling persons of Placement Agent
within the meaning of the federal securities laws, and the respective
successors, assigns, heirs, beneficiaries, and legal representatives of each of
the foregoing indemnified persons or entities. All references to
Placement Agent, or Indemnified Persons, in these Indemnification Provisions
shall be understood to include any and all of the foregoing indemnified persons
or entities.
If any
action, proceeding, or investigation is commenced, as to which an Indemnified
Person proposes to demand such indemnification, it will notify the Company with
reasonable promptness; provided, however, that any failure by an Indemnified
Person to notify the Company will not relieve the Company from its obligations
hereunder except if and only to the extent that the Company’s defense of such
action, proceeding or investigation is actually prejudiced by the Indemnified
Person’s failure so to notify the Company. Placement Agent will have
the right to retain counsel of its own choice to represent them; however, such
firm shall be acceptable to the Company, which acceptance shall not be
unreasonably withheld, and unless the Company assumes Placement Agent's defense
as provided below, the Company will pay the reasonable fees and expenses of such
counsel, and such counsel shall to the fullest extent consistent with its
professional responsibilities cooperate with the Company and any counsel
designated by it. The Company will be entitled to participate at its
own expense in the defense, or if it so elects, to assume and control the
defense of any action, proceeding, or investigation, but if the Company elects
to assume the defense, such defense shall be conducted by counsel reasonably
acceptable to Placement Agent. Any Indemnified Person may retain
additional counsel of its own choice to represent it but shall bear the fees and
expenses of such counsel unless the Company shall have specifically authorized
the retaining of such counsel. The Company will not be liable for any
settlement of any claim against an Indemnified Person made without its written
consent.
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In order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these Indemnification Provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and any Indemnified Person, on the other hand, shall
contribute to the losses, claims, damages, liabilities, or costs to which the
Indemnified Persons may be subject in accordance with the relative benefits
received by the Company, on the one hand, and Placement Agent, on the other
hand, and also the relative fault of the Company, on the one hand, and Placement
Agent, on the other hand, in connection with the statements, acts or omissions
that resulted in such losses, claims, damages, liabilities, or costs, and the
relevant equitable considerations shall also be considered. No person
found liable for a fraudulent misrepresentation shall be entitled to
contribution from any person who is not also found liable for such
misrepresentation. Notwithstanding the foregoing, Placement Agent
shall be obligated to contribute any amount hereunder that exceeds the amount of
fees received by Placement Agent to the Agreement.
The
liability of the Company under the indemnification provisions set forth in this
Exhibit A shall be
limited to $25,000.
Neither
termination nor completion of the engagement of Placement Agent or any
Indemnified Person under the Agreement shall affect the provisions of these
Indemnification Provisions, which shall then remain operative and in full force
and effect for one year.
If any
provision contained in this Exhibit A is held by a court
of competent jurisdiction or other authority to be invalid, void, unenforceable,
or against its regulatory policy, the remainder of the provisions contained in
this Exhibit A shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated. These Indemnification Provisions may not be amended or
modified in any way, except by subsequent agreement executed in
writing.
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Bentley
Securities Corporation
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(▇▇▇)
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CONFIDENTIAL
August 3,
2009
▇▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
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▇▇▇ ▇▇▇▇,
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Dear ▇▇.
▇▇▇▇▇▇,
This
letter (the "Agreement") will confirm the engagement of Bentley Securities
Corporation ("Placement Agent") by Blackhawk Capital Group BDC, Inc., a Delaware
corporation and a business development company registered under the Investment
Company Act of 1940, as amended (the "Company"), as placement agent in
connection with the Company's Rule 506 offering under Regulation D under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
$250,000,000.00 in common stock ("Securities" or “Shares”) to qualified
institutional buyers ("QIBs") and "accredited investors" (as those terms are
defined under the Securities Act) (the "Investors") (the
“Offering”). The Offering will be pursuant to a Confidential Private
Placement Memorandum dated July 8, 2009 (“Memorandum”) and a subscription
agreement and purchase questionnaire ("Subscription Agreement"). The
maximum amount to be raised in the Offering is $250,000,000.00 (and 50,000,000
Shares have been sold). There is no minimum requirement for the sale
of Shares by the Company. Closings will occur upon receipt of funds
as received. Investors must be advised that there is no minimum
amount of subscriptions that must be raised in the Offering before the initial
closing or any “rolling” closing can take place. Funds will be placed
into an escrow account prior to any closing. The Company reserves the
right to lower the minimum or increase the maximum at its sole
discretion. The purchase price shall be $5.00 per Share.
1. Scope of
Placement Agent's Services. Placement Agent will assist in the
distribution of Offering Materials (as hereinafter defined) to potential
investors, report to the Company on the status of potential investors, assist in
consummating the Offering, and perform such other services, as necessary and as
requested by the Company, including, but not limited to:
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(a)
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familiarizing
itself to the extent it deems appropriate and feasible with the business
operations, financial condition, and prospects of the
Company,
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(b)
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screening
and contacting prospective investors,
and
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(c)
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assisting
in negotiations with prospective
investors.
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It is
understood by both parties that Placement Agent intends to solicit interest from
a limited number of potential Investors (QIBs and accredited
investors). Placement Agent will, in its sole discretion, determine
the reasonableness of their efforts and are under no obligation to perform at
any level other than what each deems reasonable. The Company shall
retain control of the Offering and shall have the right to determine (a) whether
to accept and close the sale of the Securities to a specific Investor, (b)
whether to close or terminate the Offering, and (c) the content of the Offering
Materials. The Company shall retain control of the Offering and shall have the
right to determine (a) whether to accept and close the sale of any Securities to
a specific Investor, (b) whether to close or terminate the Offering, (c) whether
to change any of the terms of the Offering, and (d) the content of the Offering
Materials.
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2. Fees. In return for
Placement Agent's services in the placement of Securities, the Company will pay
Placement Agent a cash fee equal to five percent (5%) of the gross proceeds (the
"Financing Fee") of any Securities placed by Placement Agent. Any
Financing Fees payable to Placement Agent will be due at the respective closing
date(s) of the Offering and shall be payable to Placement Agent by the
Company. The Company will reimburse Placement Agent for any
out-of-pocket expenses reasonably incurred in connection with this Agreement;
provided, however, that any such expenses in excess of $1,000.00 will require
prior approval by the Company.
3. Term. Unless extended,
the term of this Agreement shall commence August 4, 2009 and terminate on the
earliest to occur of: (i) ten (10) calendar days after written notice
given to the Company by Placement Agent of a potential Investor purchasing at
least 50,000,000 Shares that will close on the purchase of Shares within five
(5) calendar days of the date of such written notice; (ii) 180 calendar days
from August 4, 2009; (iii) the date of closing and funding by any Investor of a
Subscription Agreement for a minimum of 50,000,000 Shares (the "Term"); (iv) ten
(10) calendar days after written notice given to Placement Agent by the Company
that the Offering will be closed at the sole discretion of the Company; or (v)
upon ten (10) days written notice by either party hereto. Upon any
termination or expiration of this Agreement, neither the Company nor a potential
Placement Investor shall have any obligation or liability to any other party
under this Agreement. For a period of 180 calendar days from August
4, 2009 ("Period"), Placement Agent shall have the non-exclusive right on behalf
of the Company to solicit prospective Investors who are QIBs and/or accredited
investors regarding the possible sale to such Investors of
Shares. During the Period, Placement Agent shall not have the right
to conduct any other discussions on behalf of the Company regarding any matter
other than the sale of the Shares to the prospective Investors. For
purposes of clarification, the Company during the Period shall deal on a
non-exclusive basis with Placement Agent concerning the sale of the
Shares. The provisions in this agreement with respect to Fees and
indemnification (including Exhibit A hereto) shall survive such
termination.
For a
period up to one year from the termination of this Agreement and if Placement
Agent enters into a selling group of any subsequent securities offerings of the
Company, then Placement Agent shall receive additional financing fees
("Additional Fees") if the Company sells securities to those Investors
previously introduced by Placement Agent ("Protected
Investors"). Prior to the termination date, Placement Agent will
furnish the Company with a written list of the Protected
Investors. The Additional Fees will be equal to any underwriting or
placement fees that are listed in any future offering circular or
prospectus.
4. Company
Information. The Company will
furnish Placement Agent such information concerning the Company as Placement
Agent reasonably determines to be appropriate with respect to the Offering
("Information"). The Company shall afford Placement Agent and its
counsel and representatives full and complete access to its books and records
and will use commercially reasonable efforts to afford Placement Agent with full
and complete cooperation of management to gather the Information on a reasonable
basis. The Company recognizes and confirms that Placement Agent (a)
will use and rely on the Information in performing the services contemplated by
this Agreement, without independently verifying the accuracy and completeness of
the same, (b) does not assume responsibility for the accuracy or completeness of
the Information, and (c) will not make an appraisal of any assets or liability
of the Company.
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The
Company hereby represents to Placement Agent that all solicitation materials
prepared by the Company and used in connection with the Offering, including,
without limitation, the Confidential Private Placement Memorandum (the "Offering
Materials") will not, as of the date of any offer or sale in connection with the
Offering, contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein, not misleading, in
light of the circumstances under which they were made. If at any time
an event occurs as a result of which the Offering Materials, as then amended or
supplemented, would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made when such Offering Materials are
delivered to a prospective purchaser pursuant hereto, not misleading, the
Company will promptly notify Placement Agent to suspend solicitation of
prospective purchasers in connection with the Offering; and if the Company
decides to amend or supplement the Offering Materials, it will promptly advise
Placement Agent by telephone (with confirmation in writing) and will promptly
prepare an amendment or supplement that will correct such statement or
omission.
Placement
Agent will not violate, or cause the Company to violate, any applicable federal
and state securities laws in connection with the Offering.
5. Confidentiality. Placement Agent
will be bound by the confidentiality agreement entered into between the Company
and Bentley Associates L.P. dated June 24, 2009.
6. Representations
and Warranties of Placement Agent. The Placement Agent represents and
warrants to the Company as follows, to the best of its knowledge: (a)
it is a licensed broker-dealer registered with the SEC, FINRA and State
securities laws and regulations and is licensed under FINRA and State securities
laws regulations to sell Securities to QIBS and accredited investors; (b) there
are no judgments, orders, decrees, or like actions, or any proceedings pending,
before the SEC, FINRA, any State, or any court or arbitration panel that
prohibit or effect it from carrying out its obligations under this Agreement;
and (c) this Agreement has been duly authorized and approved by it, does not
contravene its organizational documents or any agreement or order to which it is
a party, and is a legal and valid obligation binding on it.
7. Indemnification. The Company
acknowledges that Placement Agent will be acting on behalf of the Company and
will require indemnification by the Company. The Company further
acknowledges that Placement Agent's indemnification provisions attached hereto
as Exhibit A are
incorporated by reference herein or are made a part hereof for all purposes as
though set forth entirely herein.
8. Miscellaneous. The Offering will
be completed in accordance with Rule 506 under Regulation D under the Securities
Act and all applicable state or other jurisdictional securities laws (i.e. "blue
sky" laws). All prospective Investors will be persons who qualify as
QIBs and/or accredited investors under all applicable federal and state
securities laws and who execute a Subscription Agreement.
The
Company shall have the right to identify Investors with which it has
affiliations who would be suitable QIBs and/or accredited investors for the
Offering ("Company-Introduced Investors"). In the event that the Company decides
that these Investors are suitable for the Offering and these Investors purchase
Securities in the Offering, no fees shall be due to Placement Agent respecting
Securities purchased by Company-Introduced Investors pursuant to Section 2
above.
The
Company agrees that, following the closing of the Offering, Placement Agent and
shall have the right to place advertisements in financial and other newspapers
and journals at their own expense describing its services to the Company
hereunder, provided that Placement Agent will submit a copy of any such
advertisement to the Company for its approval, which approval shall not be
unreasonably withheld or delayed, and that such action is not in violation of
Rule 506 under Regulation D or other federal and state securities
laws.
The
parties agree that their relationship under this Agreement is an advisory
relationship only, and nothing herein shall cause the Placement Agent to be
partners, agents or fiduciaries of, or joint venture partners with, the Company
or with each other.
17
This
Agreement may not be amended or modified except in writing and shall be governed
by, and construed in accordance with the laws of the State of New
York.
If this
Agreement reflects our mutual understanding, please execute two copies in the
space indicated below and return one to us.
Very
truly yours,
BENTLEY
SECURITIES CORPORATION
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/s/ ▇. ▇▇▇▇▇▇▇ Southern
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▇.
▇▇▇▇▇▇▇ Southern
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Managing
Director
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BLACKHAWK
CAPITAL GROUP BDC, INC.
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇.
▇▇▇▇▇ ▇ ▇▇▇▇▇▇
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Chairman
of the Board, President & Chief Executive
Officer
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18
Exhibit
A
Indemnification
The
Company agrees to indemnify and hold harmless the Placement Agent together with
its affiliates, directors, officers, agents, and employees (Placement Agent each
such entity or person, an "Indemnified Person"), from and against any and all
losses, claims, damages, judgments, and liabilities, expenses, or costs (and all
actions in respect thereof and any legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise), including the
cost of investigating, preparing for, or defending any such action or claim,
whether or not in connection with litigation in which an Indemnified Person is a
party, as and when incurred, directly or indirectly caused by, relating to,
based upon, or arising out of Placement Agent's performance of its engagement by
the Company under the letter agreement dated as of August 3, 2009, as it may be
amended from time to time (the "Agreement"), or otherwise arising out of or in
connection with advice or services provided or to be provided by Indemnified
Persons pursuant to the Agreement, the transactions contemplated thereby, or any
Indemnified Person’s actions or inactions in connection with any such advice,
services, or transactions, including any Indemnified Person's sole or
contributory negligence, if such activities were performed (i) in good faith and
(ii) in such manner reasonably believed by such Indemnified Person to be within
the scope of the authority conferred by the Agreement or by law and to be on
behalf of the Company or in furtherance of the performance of Placement Agent's
services under the Agreement; provided, however, such indemnification agreement
shall not apply to any such loss, claim, damage, liability, or cost incurred by
any Indemnified Person to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct or bad
faith of such Indemnified Person. The Company also agrees that no
Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company for or in connection with the any
advice or services provided by any Indemnified Persons in connection with the
Agreement, the transactions contemplated by the Agreement, or any Indemnified
Persons’ actions or inactions in connection with any such advice, services, or
transactions except for any such liability for losses, claims, damages,
liabilities, or costs found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from such Indemnified Person’s gross negligence or willful misconduct
or bad faith in connection with such advice, actions, inactions, or
services.
These
Indemnification Provisions shall be in addition to any liability that the
Company may otherwise have to any Indemnified Person and shall extend to the
following: Placement Agent, its affiliated entities, directors, officers,
employees, agents, legal counsel and controlling persons of Placement Agent
within the meaning of the federal securities laws, and the respective
successors, assigns, heirs, beneficiaries, and legal representatives of each of
the foregoing indemnified persons or entities. All references to
Placement Agent, or Indemnified Persons, in these Indemnification Provisions
shall be understood to include any and all of the foregoing indemnified persons
or entities.
If any
action, proceeding, or investigation is commenced, as to which an Indemnified
Person proposes to demand such indemnification, it will notify the Company with
reasonable promptness; provided, however, that any failure by an Indemnified
Person to notify the Company will not relieve the Company from its obligations
hereunder except if and only to the extent that the Company’s defense of such
action, proceeding or investigation is actually prejudiced by the Indemnified
Person’s failure so to notify the Company. Placement Agent will have
the right to retain counsel of its own choice to represent them; however, such
firm shall be acceptable to the Company, which acceptance shall not be
unreasonably withheld, and unless the Company assumes Placement Agent's defense
as provided below, the Company will pay the reasonable fees and expenses of such
counsel, and such counsel shall to the fullest extent consistent with its
professional responsibilities cooperate with the Company and any counsel
designated by it. The Company will be entitled to participate at its
own expense in the defense, or if it so elects, to assume and control the
defense of any action, proceeding, or investigation, but if the Company elects
to assume the defense, such defense shall be conducted by counsel reasonably
acceptable to Placement Agent. Any Indemnified Person may retain
additional counsel of its own choice to represent it but shall bear the fees and
expenses of such counsel unless the Company shall have specifically authorized
the retaining of such counsel. The Company will not be liable for any
settlement of any claim against an Indemnified Person made without its written
consent.
19
In order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these Indemnification Provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and any Indemnified Person, on the other hand, shall
contribute to the losses, claims, damages, liabilities, or costs to which the
Indemnified Persons may be subject in accordance with the relative benefits
received by the Company, on the one hand, and Placement Agent, on the other
hand. No person found liable for a fraudulent misrepresentation shall
be entitled to contribution from any person who is not also found liable for
such misrepresentation. Notwithstanding the foregoing, Placement
Agent shall not be obligated to contribute any amount hereunder that exceeds the
amount of fees received by Placement Agent pursuant to the
Agreement.
Neither
termination nor completion of the engagement of Placement Agent or any
Indemnified Person under the Agreement shall affect the provisions of these
Indemnification Provisions, which shall then remain operative and in full force
and effect for five years.
If any
provision contained in this Exhibit A is held by a court
of competent jurisdiction or other authority to be invalid, void, unenforceable,
or against its regulatory policy, the remainder of the provisions contained in
this Exhibit A shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated. These Indemnification Provisions may not be amended or
modified in any way, except by subsequent agreement executed in
writing.
20
Growthink
Securities, Inc.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
CONFIDENTIAL
August
21, 2009
▇▇. ▇▇▇▇▇
▇ ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
l4 ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear ▇▇.
▇▇▇▇▇▇,
This
letter (the "Agreement") will confirm the engagement of Growthink Securities,
Inc. ("Placement Agent") by Blackhawk Capital Group BDC, Inc., a Delaware
corporation and a business development company registered under
the Investment Company Act of 1940, as amended (the "Company"),as placement
agent in connection with the Company's Rule 506 offering under
Regulation D under the Securities Act of 1933, as amended (the"
Securities in common Act"), of up to $250,000,000.00 stock ("Securities" or
"Shares") to qualified institutional buyers ("QIBs") and "accredited
investors"(as those terms are defined under the Securities Act) (the"
Investors")(the "Offering"). The Offering will be pursuant to a Confidential
Private Placement Memorandum dated July 8 2009 ("Memorandum") and a subscription
agreement and purchase questionnaire ("Subscription Agreement"). The maximum
amount to be raised in the Offering is $250,000,000.00(and 50,000,000 Shares
have been sold). There is no minimum requirement for the sale of Shares by the
Company. Closings will occur upon receipt of funds as received. Investors must
be advised that there is no minimum amount of subscriptions that must be raised
in the Offering before the initial closing or any "rolling" closing can take
place. Funds will be placed into an escrow account prior to any closing. The
Company reserves the right to lower the minimum or increase the maximum at its
sole discretion. The purchase price shall be $5.00 per Share.
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1)
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Scope
of Placement Agent's Services. Placement Agent will assist in the
distribution of Offering Materials (as hereinafter defined) to potential
investors, report to the Company on the status of potential investors,
assist in consummating the Offering, and perform such other services, as
necessary and as requested by the Company, including, but not limited
to:
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(a)
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familiarizing
itself to the extent it deems appropriate and feasible with the Business
operations, financial condition, and prospects of the
Company,
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(b)
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screening
and contacting prospective investors,
and
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(c)
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assisting
in negotiations with prospective
investors.
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It is
understood by both parties that Placement Agent intends to solicit interest from
a limited number of potential Investors (QIBs and accredited investors).
Placement Agent will, in its sole discretion, determine the reasonableness of
their efforts and are under no obligation to perform at any level other than
what each deems reasonable. The Company shall retain control of the Offering and
shall have the right to determine (a) whether to accept and close the sale of
the Securities to a specific Investor, (b) whether to close or terminate the
Offering, and (c) the content of the Offering Materials. The Company shall
retain control of the Offering and shall have the right to determine (a) whether
to accept and close the sale of any Securities to a specific Investor, (b)
whether to close or terminate the Offering, (c) whether to change any of the
terms of the Offering, and (d) the content of the Offering
Materials.
21
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2)
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Fees.
In return for Placement Agent's services in the placement of Securities,
the Company will pay Placement Agent a cash fee equal to five percent (5%)
of the gross proceeds(the "Financing Fee") of any Securities placed by
Placement Agent with an Investor introduced by Placement Agent that
consummates an equity investment with the Company in the Offering ("GT
Protected Investors"). Any Financing Fees payable to Placement Agent will
be due at the respective closing date(s) of the Offering and shall be
payable to Placement Agent by the Company. Placement Agent shall not be
entitled to receive the reimbursement of any expenses from the
Company.
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3)
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Term.
Unless extended or earlier terminated by mutual agreement in writing of
the parties, the term of this Agreement shall commence August 21,2009 and
terminate on the earliest to occur of: (i) ten (10) calendar days after
written notice given to the Company by Placement Agent of a potential
Investor purchasing at least 50,000,000 Shares that will close on the
purchase of Shares within five (5) calendar days of the date of such
written notice;(ii) 180 calendar days from August 21,2009; (iii) the date
of closing and funding by any Investor of a Subscription Agreement for a
minimum of 50,000,000 Shares(the "Term");or (iv) ten(10) calendar days
after written notice given to Placement Agent by the Company that the
Offering will be closed at the sole discretion of the Company. Upon any
termination or expiration of this Agreement, neither the Company nor a
potential Placement Investor shall have any obligation or liability to any
other party under this Agreement. For a period of 180 calendar days from
August 2l ,2009 ("Period"),Placement Agents hall have the non-exclusive
right on behalf of the Company to solicit prospective Investors who are
QIBs and/or accredited investors regarding the possible sale to such
Investors of Shares, During the Period, Placement Agent shall not have the
right to conduct any other discussions on behalf of the Company regarding
any matter other than the sale of the Shares to the prospective Investors.
For purposes of clarification, the Company during the Period shall deal on
a non-exclusive basis with Placement Agent concerning the sale of the
Shares.
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For a
period up to two years from the termination of this Agreement and if Placement
Agent enters into a selling group of any subsequent securities offerings of the
Company, then Placement Agent shall receive additional financing fees
("Additional Fees")if the Company sells securities to GT Protected Investors.
Prior to the termination date, Placement Agent will furnish the Company with a
written list of GT protected Investors. The Additional Fees will be equal to any
underwriting or placement fees that are listed in any future offering circular
or prospectus.
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4)
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Company
Information. The Company will furnish Placement Agent such
information concerning the Company as Placement Agent reasonably
determines to be appropriate with respect to the Offering ("Information").
The Company shall afford Placement Agent and its counsel and
representatives full and complete access to its books and records and will
use commercially reasonable efforts to afford placement Agent with full
and complete cooperation of management to gather the Information on a
reasonable basis. The Company recognizes and confirms that Placement Agent
(a)will use and rely on the Information in performing the services
contemplated by this Agreement, without independently verifying the
accuracy and completeness of the same,(b) does not assume responsibility
for the accuracy or completeness of the Information, and (c) will not make
an appraisal of any assets or liability of the
Company.
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22
The
Company hereby represents to Placement Agent that all solicitation materials
prepared by the Company and used in connection with the Offering, including,
without limitation, the Confidential Private Placement Memorandum (the "Offering
Materials") will not, as of the date of any offer or sale in connection with the
Offering, contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein, not
misleading, in light of the circumstances under which they were made. If at any
time an event occurs as a result of which the Offering Materials, as then
amended or supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made when such Offering
Materials are delivered to a prospective purchaser pursuant hereto, not
misleading, the Company will promptly notify Placement Agent to suspend
solicitation of prospective purchasers in connection with the Offering; and if
the Company decides to amend or supplement the Offering Materials, it will
promptly advise Placement Agent by telephone (with confirmation in writing) and
will promptly prepare an amendment or supplement that will correct such
statement or omission.
Placement
Agent will not violate, or cause the Company to violate, any applicable federal
and state securities laws in connection with the Offering,
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5)
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Confidentiality.
In connection with this engagement, it is contemplated that Placement
Agent will receive from the Company certain information (including refrain
business planning, investment, product, marketing, technical, financial,
and other information and materials) the Company considers confidential.
Placement Agent shall use this confidential information solely for the
purpose of providing services to the Company and will not disclose to any
party (other than Placement Agent's officers, directors, employees,
affiliates, and counsel who have a need to know such information, herein
(“Representatives")any such confidential information, except with the
prior written approval of the Company; provided, however that the
foregoing restrictions shall not apply to any information that: (a) is
included in the Offering Materials and disclosed pursuant to the
distribution of the Offering materials as permitted by the Company, (b)
the Company consents to having disclosed in connection with the offering,
(c) is publicly available when provided or thereafter becomes publicly
available other than through disclosure by Placement Agent or its
Representatives, or (d) is required to be disclosed by Placement Agent by
judicial or administrative process in connection with any action, suit,
proceeding, or investigation; and provided, further, however, that
Placement Agent shall give the Company notice of any such requirement
immediately upon the becoming aware of same and shall not disclose such
information except only to the extent required after the maximum time
permitted. Information shall be deemed "publicly available" if it becomes
a matter of public knowledge or is contained in materials available to the
public or is obtained by Placement Agent from any source other than the
Company or its representatives, provided that such source was not to
Placement Agent's actual knowledge subject to a confidentiality agreement
with the Company. Placement Agent will take reasonable steps to assure
that the Offering Materials are not distributed to any persons not
permitted to receive them pursuant to the terms hereof. Placement Agent
will not provide any confidential information to prospective Investors or
any other third party without the express written consent of the Company
unless the prospective Investor has executed a confidentiality agreement
acceptable to the Company.
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6)
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Representations
and Warranties of Placement Agent. The Placement Agent represents
and warrants to the Company as follows: (a) it is a licensed broker-dealer
registered with the SEC, FINRA and State securities laws and regulations
and is licensed under FINRA and State securities laws regulations to sell
Securities to QIBS and accredited investors; (b) there are no judgments,
orders, decrees, or like actions, or any proceedings pending, before the
SEC, FINRA, any State, or any court or arbitration panel that prohibit or
effect it from carrying out its obligations under this Agreement; and (c)
this Agreement has been duly authorized and approved by it, does not
contravene its organizational documents or any agreement or order to which
it is a party, and is a legal and valid obligation binding on
it.
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23
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7)
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Indemnification.
The Company acknowledges that Placement Agent will be acting on behalf of
the Company and will require indemnification by the Company. The Company
further acknowledges that Placement Agent's indemnification provisions
attached hereto as Exhibit A are incorporated by reference herein or are
made a part hereof for all purposes as though set forth entirely
herein.
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8)
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Miscellaneous.
The Offering will be completed in accordance with Rule 506 under
Regulation D under the Securities Act and all applicable state or other
jurisdictional "under securities laws (i.e. "blue sky" laws). All
prospective Investors will be persons who qualify as QIBs and/or
accredited investors under all applicable federal and state securities
laws and who execute a Subscription
Agreement.
|
The
Company shall have the right to identify Investors with which it has
affiliations who would be suitable QIBs and/or accredited investors for the
Offering ("Company-Introduced Investors"). In the event that the Company decides
that these Investors are suitable for the Offering and these Investors purchase
Securities in the Offering, no fees shall be due to Placement Agent respecting
Securities purchased by Company-Introduced Investors pursuant to Section 2
above.
The
Company agrees that, following the closing of the Offering, Placement Agent and
shall have the right to place advertisements in financial and other newspapers
and journals at their own expense describing its services to the Company
hereunder, provided that Placement Agent will submit a copy of any such
advertisement to the Company for its approval, which approval shall not be
unreasonably withheld or delayed, and that such action is not in violation of
Rule 506 under Regulation D or other federal and state securities
laws.
The
parties agree that their relationship under this Agreement is an advisory
relationship only, and nothing herein shall cause the Placement Agent to be
partners, agents or fiduciaries of, or joint venture partners with, the Company
or with each other.
This
Agreement may not be amended or modified except in writing and shall be governed
by, and construed in accordance with the laws of the State of New
York.
If this
Agreement reflects our mutual understanding, please execute two copies in the
space indicated below and return one to us.
Very
truly yours,
GROWTHINK
SECURITIES, INC.
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/s/
▇▇▇▇▇ ▇▇▇▇
|
Name:
▇▇▇▇▇ ▇▇▇▇
Title:
Principal
BLACKHAWK
CAPITAL GROUP BDC. INC.
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
24
Exhibit
A
Indemnification
The
Company agrees to indemnify and hold harmless the Placement Agent together with
its affiliates, directors, officers, agents, and employees (Placement Agent each
such entity or person, an "indemnified Person"), from and against any and all
losses, claims, damages, judgments, and liabilities, expenses, or costs and all
actions in respect thereof and any legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise), including the
cost of investigating, preparing for, or defending any such action or claim,
whether or not in connection with litigation in which an Indemnified Person is a
party, as and when incurred, directly or indirectly caused by, relating to,
based upon, or arising out of Placement Agent's performance of its engagement by
the Company under the letter agreement dated as of August 21,2009, as it may be
amended from time to time (the "Agreement"),or otherwise arising out of or in
connection with advice or services provided or to be provided by Indemnified
Persons pursuant to the Agreement, the transactions contemplated thereby, or any
Indemnified Person's actions or inactions in connection with any such advice,
services, or transactions, including any Indemnified Person's sole or
contributory negligence, if such activities were performed (i) in good faith and
(ii) in such manner reasonably believed by such Indemnified Person to be within
the scope of the authority conferred by the Agreement or by law and to be on
behalf of the Company or in furtherance of the performance of Placement Agent's
services under the Agreement; provided, however, such indemnification agreement
shall not apply to any such loss, claim, damage, liability, or cost incurred by
any Indemnified Person to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct or bad
faith of such Indemnified Person. The Company also agrees that no Indemnified
Person shall have any liability (whether direct or indirect, in contractor tort
or otherwise) to the Company for or in connection with the any advice or
services provided by any Indemnified Persons in connection with the Agreement,
the transactions contemplated by the Agreement, or any Indemnified Persons'
actions or inactions in connection with any such advice, services, or
transactions except for any such liability for losses, claims, damages,
liabilities, or costs found in a final judgment by a court of competent
jurisdiction(not subject to further appeal) to have resulted primarily and
directly from such Indemnified Person's gross negligence or willful misconduct
or bad faith in connection with such advice, actions, inactions, or
services.
These
Indemnification Provisions shall be in addition to any liability that the
Company may otherwise have to any Indemnified Person and shall extend to the
following: Placement Agent, its affiliated entities, directors, officers,
employees, agents, legal counsel and controlling persons of Placement Agent
within the meaning of the federal securities laws, and the respective
successors, assigns, heirs, beneficiaries, and legal representatives of each of
the foregoing indemnified persons or entities. All references to Placement
Agent, or Indemnified Persons, in these Indemnification Provisions shall be
understood to include any and all of the foregoing indemnified persons or
entities.
25
If any
action, proceeding, or investigation is commenced, as to which an Indemnified
Person proposes to demand
such indemnification, it will notify the Company with reasonable promptness;
provided, however, that any failure by an Indemnified Person to notify the
Company will not relieve the Company from its obligations hereunder except if
and only to the extent that the Company's defense of such action, proceeding or
investigation is actually prejudiced by the Indemnified Person's failure so to
notify the Company. Placement Agent will have the right to retain counsel of its
own choice to represent them; however, such firm shall be acceptable to the
Company, which acceptance shall not be unreasonably withheld, and unless the
Company assumes Placement Agent's defense as provided below, the Company will
pay the reasonable fees and expenses of such counsel, and such counsel shall to
the fullest extent consistent with its professional responsibilities cooperate
with the Company and any counsel designated by it. The Company will be entitled
to participate at its own expense in the defense, or if it so elects, to assume
and control the defense of any action, proceeding, or investigation, but if the
Company elects to assume the defense, such defense shall be conducted by counsel
reasonably acceptable to Placement Agent. Any Indemnified Person may retain
additional counsel of its own choice to represent it but shall bear the fees and
expenses of such counsel unless the Company shall have specifically authorized
the retaining of such counsel. The Company will not be liable for any settlement
of any claim against an Indemnified Person made without its written
consent.
In order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these Indemnification Provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and any Indemnified Person, on the other hand, shall
contribute to the losses, claims, damages, liabilities, or costs to which the
Indemnified Persons may be subject in accordance with the relative benefits
received by the Company, on the one hand, and Placement Agent, on the other
hand, and also the relative fault of the Company, on the one hand, and Placement
Agent, on the other hand, in connection with the statements, acts or omissions
that resulted in such losses, claims, damages, liabilities, or costs, and the
relevant equitable considerations shall also be considered. No person found
liable for a fraudulent misrepresentation shall be entitled to contribution from
any person who is not also found liable for such misrepresentation.
Notwithstanding the foregoing, Placement Agent shall not be obligated to
contribute any amount hereunder that exceeds the amount of fees received by
Placement Agent pursuant to the Agreement.
The
liability of the Company under the indemnification provisions set forth in this
Exhibit A shall be
limited to $25.000.
Neither
termination nor completion of the engagement of Placement Agent or any
Indemnified Person under the Agreement shall affect the provisions of these
Indemnification Provisions, which shall then remain operative and in full force
and effect for one year.
If any
provision jurisdiction or other authority contained in this Exhibit A is held by a court
of competent to be
invalid, void, unenforceable, of the provisions or against its regulatory
policy, the remainder contained in this Exhibit A shall remain in full
force and effect and shall in no way be affected, impaired, or invalidated.
These Indemnification may not be amended Provisions or modified in any way,
except by subsequent executed agreement in writing.
26
CONFIDENTIAL
December
15, 2009
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear ▇▇.
▇▇▇▇▇▇:
Reference is made to the placement
agent agreement (“Agreement”) dated August 3, 2009 between Bentley Securities
Corporation (“Placement Agent”) and Blackhawk Capital Group BDC, Inc., a
Delaware corporation and a business development company registered under the
Investment Company Act of 1940, as amended (the “Company”). The purpose of this
letter agreement is to amend the Agreement.
The Agreement is amended as
follows:
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1.
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The
term “Offering” shall also include the Company’s offering of up to
1,000,000 shares ($5.00 per share) pursuant to Regulation E (the
“Regulation E Offering”) under the Investment Company Act of 1940, as
amended, and the Securities Act of 1933, as amended. The Regulation E
Offering had no minimum and a maximum of
$5,000,000.
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2.
|
The
term “Offering Materials” shall include the Company’s Form 1-Es and
Offering Circulars filed with the Securities and Exchange Commission, and
distributed to prospective investors, for the Regulation E
Offering.
|
|
3.
|
Section
2 shall be amended to provide that the Placement Agent shall receive a
cash fee of ten percent (10%) of any shares of Common Stock purchased by
investors in the Regulation E Offering and placed by the Placement
Agent.
|
|
4.
|
Reference
is made to Section 3 of the Agreement with respect to the Term. The Term
of the Agreement with respect to the Regulation E Offering shall terminate
on the earliest to occur of (x) the termination of the Regulation E
Offering and (y) the date that the Placement Agent and the Company
mutually agree in writing to terminate the Placement Agent’s participation
in the Regulation E Offering.
|
Except as
amended by this letter agreement, all terms of the Agreement shall remain in
full force and effect.
27
If this letter agreement reflects our
mutual understanding, please execute two copies in the space indicated below and
return one to us.
Very
truly yours,
Bentley
Securities Corporation
|
/s/ ▇. ▇▇▇▇▇▇▇
Southern
|
Name: ▇.
▇▇▇▇▇▇▇ Southern
Title:
Managing Director
Accepted
and agreed to as of December 15, 2009
BLACKHAWK
CAPITAL GROUP BDC, INC.
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President and Chief Executive Officer
28
Growthink
Securities, Inc.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇)
▇▇▇-▇▇▇▇
CONFIDENTIAL
December
14, 2009
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear ▇▇.
▇▇▇▇▇▇:
Reference is made to the placement
agent agreement (“Agreement”) dated August 21, 2009 between Growthink
Securities, Inc. (“Placement Agent”) and Blackhawk Capital Group BDC, Inc., a
Delaware corporation and a business development company registered under the
Investment Company Act of 1940, as amended (the “Company”). The purpose of this
letter agreement is to amend the Agreement.
The Agreement is amended as
follows:
|
1.
|
He
term “Offering” shall also include the Company’s offering of up to
1,000,000 shares ($5.00 per share) pursuant to Regulation E (the
“Regulation E Offering”) under the Investment Company Act of 1940, as
amended, and the Securities Act of 1933, as amended. The Regulation E
Offering had no minimum and a maximum of
$5,000,000.
|
|
2.
|
The
term “Offering Materials” shall include the Company’s Form 1-Es and
Offering Circulars filed with the Securities and Exchange Commission, and
distributed to prospective investors, for the Regulation E
Offering.
|
|
3.
|
Section
2 shall be amended to provide that the Placement Agent shall receive a
cash fee of ten percent (10%) of any shares of Common Stock purchased by
investors in the Regulation E Offering and placed by the Placement
Agent.
|
|
4.
|
Reference
is made to Section 3 of the Agreement with respect to the Term. The Term
of the Agreement with respect to the Regulation E Offering shall terminate
on the earliest to occur of (x) the termination of the Regulation E
Offering and (y) the date that the Placement Agent and the Company
mutually agree in writing to terminate the Placement Agent’s participation
in the Regulation E Offering.
|
Except as
amended by this letter agreement, all terms of the Agreement shall remain in
full force and effect.
29
If this letter agreement reflects our
mutual understanding, please execute two copies in the space indicated below and
return one to us.
Very
truly yours,
GROWTHINK
SECURITIES
|
/s/▇▇▇▇▇
▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇
Principal
Accepted
and agreed to as of December 16, 2009
BLACKHAWK
CAPITAL GROUP BDC, INC.
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President and Chief Executive Officer
30
Direct
Access Partners, LLC
▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
CONFIDENTIAL
December
15, 2009
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President & Chief Executive Officer
Blackhawk
Capital Group BDC, Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear ▇▇.
▇▇▇▇▇▇:
Reference is made to the placement
agent agreement (“Agreement”) dated July 10, 2009 between Direct Access Partners
LLC. (“Placement Agent”) and Blackhawk Capital Group BDC, Inc., a Delaware
corporation and a business development company registered under the Investment
Company Act of 1940, as amended (the “Company”). The purpose of this letter
agreement is to amend the Agreement.
The Agreement is amended as
follows:
|
1.
|
He
term “Offering” shall also include the Company’s offering of up to
1,000,000 shares ($5.00 per share) pursuant to Regulation E (the
“Regulation E Offering”) under the Investment Company Act of 1940, as
amended, and the Securities Act of 1933, as amended. The Regulation E
Offering had no minimum and a maximum of
$5,000,000.
|
|
2.
|
The
term “Offering Materials” shall include the Company’s Form 1-Es and
Offering Circulars filed with the Securities and Exchange Commission, and
distributed to prospective investors, for the Regulation E
Offering.
|
|
3.
|
Section
2 shall be amended to provide that the Placement Agent shall receive a
cash fee of ten percent (10%) of any shares of Common Stock purchased by
investors in the Regulation E Offering and placed by the Placement
Agent.
|
|
4.
|
Reference
is made to Section 3 of the Agreement with respect to the Term. The Term
of the Agreement with respect to the Regulation E Offering shall terminate
on the earliest to occur of (x) the termination of the Regulation E
Offering and (y) the date that the Placement Agent and the Company
mutually agree in writing to terminate the Placement Agent’s participation
in the Regulation E Offering.
|
Except as
amended by this letter agreement, all terms of the Agreement shall remain in
full force and effect.
If this letter agreement reflects our
mutual understanding, please execute two copies in the space indicated below and
return one to us.
31
Very
truly yours,
Direct
Access Partners
|
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
|
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Chief
Financial Officer & Chief Compliance Officer
Accepted
and agreed to as of December 16, 2009
BLACKHAWK
CAPITAL GROUP BDC, INC.
|
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
|
▇▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Chairman
of the Board, President and Chief Executive Officer
32