VISIONGATEWAY, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: April 5, 2006
Newbridge Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, visionGATEWAY, Inc., a Nevada corporation (the
"Company"), hereby agrees with Newbridge Securities Corporation (the
"Placement Agent") as follows:
1. Offering. The Company hereby engages the Placement Agent to act
as its exclusive placement agent in connection with the Standby Equity
Distribution Agreement dated the date hereof between the Company and Cornell
Capital Partners, LP (the "Investor") (the "Standby Equity Distribution
Agreement"), pursuant to which the Company shall issue and sell to the
Investor, from time to time, and the Investor shall purchase from the Company
(the "Offering") up to Fifteen Million Dollars ($15,000,000) (the "Commitment
Amount") of the Company's common stock, par value $0.004 per share (the
"Common Stock"), at price per share equal to the Purchase Price, as that term
is defined in the Standby Equity Distribution Agreement. The Placement Agent
services shall consist of reviewing the terms of the Standby Equity
Distribution Agreement and advising the Company with respect to those terms.
All capitalized terms used herein and not otherwise defined herein shall
have the same meaning ascribed to them as in the Standby Equity Distribution
Agreement. The Investor will be granted certain registration rights with
respect to the Common Stock as more fully set forth in the Registration Rights
Agreement between the Company and the Investor dated the date hereof (the
"Registration Rights Agreement"). The documents to be executed and delivered
in connection with the Offering, including, but not limited, to the Company's
latest Quarterly Report on Form 10-QSB as filed with the United States
Securities and Exchange Commission, this Agreement, the Standby Equity
Distribution Agreement, and the Registration Rights Agreement are referred to
sometimes hereinafter collectively as the "Offering Materials." The Company's
Common Stock purchased by the Investor under the Standby Equity Distribution
Agreement is sometimes referred to hereinafter as the "Securities." The
Placement Agent shall not be obligated to sell any Securities.
2. Compensation.
A. Upon the execution of this Agreement, the Company shall
issue to the Placement Agent or its designee 17,499 shares of the Company's
Common Stock (the "Placement Agent's Shares"). The Placement Agent shall be
entitled to "piggy-back" registration rights with respect to the Placement
Agent's Shares, which shall be triggered upon registration of any shares of
Common Stock by the Company pursuant to the Registration Rights Agreement
dated the date hereof.
3. Representations, Warranties and Covenants of the Placement Agent.
A. The Placement Agent represents, warrants and covenants as
follows:
(i) The Placement Agent has the necessary power to enter
into this Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Placement
Agent of this Agreement and the consummation of the transactions contemplated
herein will not result in any violation of, or be in conflict with, or
constitute a default under, any agreement or instrument to which the Placement
Agent is a party or by which the Placement Agent or its properties are bound,
or any judgment, decree, order or, to the Placement Agent's knowledge, any
statute, rule or regulation applicable to the Placement Agent. This Agreement
when executed and delivered by the Placement Agent, will constitute the legal,
valid and binding obligations of the Placement Agent, enforceable in
accordance with their respective terms, except to the extent that (a) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally, (b) the enforceability hereof or
thereof is subject to general principles of equity, or (c) the indemnification
provisions hereof or thereof may be held to be in violation of public policy.
(iii) Upon receipt and execution of this Agreement,
the Placement Agent will promptly forward copies of this Agreement to the
Company or its counsel and the Investor or its counsel.
(iv) The Placement Agent will not intentionally take
any action that it reasonably believes would cause the Offering to violate the
provisions of the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934 (the "1934 Act"), the respective rules and
regulations promulgated thereunder (the "Rules and Regulations") or applicable
"Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent is a member of the National
Association of Securities Dealers, Inc., and is a broker-dealer registered as
such under the 1934 Act and under the securities laws of the states in which
the Securities will be offered or sold by the Placement Agent unless an
exemption for such state registration is available to the Placement Agent.
The Placement Agent is in material compliance with the rules and regulations
applicable to the Placement Agent generally and applicable to the Placement
Agent's participation in the Offering.
4. Representations and Warranties of the Company.
A. The Company represents and warrants as follows:
(i) The execution, delivery and performance of each of
this Agreement, the Standby Equity Distribution Agreement, and the
Registration Rights Agreement has been or will be duly and validly authorized
by the Company and is, or with respect to this Agreement, the Standby Equity
Distribution Agreement, and the Registration Rights Agreement will be, a valid
and binding agreement of the Company, enforceable in accordance with its
respective terms, except to the extent that (a) the enforceability hereof or
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws from time to time in effect and affecting the rights of
creditors generally, (b) the enforceability hereof or thereof is subject to
general principles of equity or (c) the indemnification provisions hereof or
thereof may be held to be in violation of public policy. The Securities to be
issued pursuant to the transactions contemplated by this Agreement and the
Standby Equity Distribution Agreement have been duly authorized and, when
issued and paid for in accordance with this Agreement and the Standby Equity
Distribution Agreement will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms, except to the extent
that (1) the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect and
affecting the rights of creditors generally, and (2) the enforceability
thereof is subject to general principles of equity. All corporate action
required to be taken for the authorization, issuance and sale of the
Securities has been duly and validly taken by the Company.
(ii) The Company has a duly authorized, issued and
outstanding capitalization as set forth herein and in the Standby Equity
Distribution Agreement. The Company is not a party to or bound by any
instrument, agreement or other arrangement providing for it to issue any
capital stock, rights, warrants, options or other securities, except for this
Agreement, the agreements described herein and as described in the Standby
Equity Distribution Agreement and the agreements described therein. All
issued and outstanding securities of the Company, have been duly authorized
and validly issued and are fully paid and non-assessable; the holders thereof
have no rights of rescission or preemptive rights with respect thereto and are
not subject to personal liability solely by reason of being security holders;
and none of such securities were issued in violation of the preemptive rights
of any holders of any security of the Company.
(iii) The Common Stock to be issued in accordance with
this Agreement and the Standby Equity Distribution Agreement have been duly
authorized and, when issued and paid for in accordance with this Agreement,
the Standby Equity Distribution Agreement and the certificates/instruments
representing such Common Stock will be validly issued, fully-paid and non-
assessable; the holders thereof will not be subject to personal liability
solely by reason of being such holders; such Securities are not and will not
be subject to the preemptive rights of any holder of any security of the
Company.
(iv) The Company has good and marketable title to, or
valid and enforceable leasehold estates in, all items of real and personal
property necessary to conduct its business (including, without limitation, any
real or personal property stated in the Offering Materials to be owned or
leased by the Company), free and clear of all liens, encumbrances, claims,
security interests and defects of any material nature whatsoever, other than
those set forth in the Offering Materials and liens for taxes not yet due and
payable.
(v) There is no litigation or governmental proceeding
pending or, to the best of the Company's knowledge, threatened against, or
involving the properties or business of the Company, except as set forth in
the Offering Materials.
(vi) The Company is duly organized and validly exists
as a corporation in good standing under the laws of the State of Nevada.
Except as set forth in the Offering Materials, the Company does not own or
control, directly or indirectly, an interest in any other corporation,
partnership, trust, joint venture or other business entity. The Company is
duly qualified or licensed and in good standing as a foreign corporation in
each jurisdiction in which the character of its operations requires such
qualification or licensing and where failure to so qualify would have a
material adverse effect on the Company. The Company has all requisite
corporate power and authority, and all material and necessary authorizations,
approvals, orders, licenses, certificates and permits of and from all
governmental regulatory officials and bodies (domestic and foreign) to conduct
its businesses (and proposed business) as described in the Offering Materials.
Any disclosures in the Offering Materials concerning the effects of foreign,
federal, state and local regulation on the Company's businesses as currently
conducted and as contemplated are correct in all material respects and do not
omit to state a material fact. The Company has all corporate power and
authority to enter into this Agreement, the Standby Equity Distribution
Agreement, the Registration Rights Agreement, and to carry out the provisions
and conditions hereof and thereof, and all consents, authorizations, approvals
and orders required in connection herewith and therewith have been obtained.
No consent, authorization or order of, and no filing with, any court,
government agency or other body is required by the Company for the issuance of
the Securities or execution and delivery of the Offering Materials except for
applicable federal and state securities laws. The Company, since its
inception, has not incurred any liability arising under or as a result of the
application of any of the provisions of the 1933 Act, the 1934 Act or the
Rules and Regulations.
(vii) There has been no material adverse change in the
condition or prospects of the Company, financial or otherwise, from the latest
dates as of which such condition or prospects, respectively, are set forth in
the Offering Materials, and the outstanding debt, the property and the
business of the Company conform in all material respects to the descriptions
thereof contained in the Offering Materials.
(viii) Except as set forth in the Offering Materials,
the Company is not in breach of, or in default under, any term or provision of
any material indenture, mortgage, deed of trust, lease, note, loan or any
other material agreement or instrument evidencing an obligation for borrowed
money, or any other material agreement or instrument to which it is a party or
by which it or any of its properties may be bound or affected. The Company is
not in violation of any provision of its charter or by-laws or in violation of
any franchise, license, permit, judgment, decree or order, or in violation of
any material statute, rule or regulation. Neither the execution and delivery
of the Offering Materials nor the issuance and sale or delivery of the
Securities, nor the consummation of any of the transactions contemplated in
the Offering Materials nor the compliance by the Company with the terms and
provisions hereof or thereof, has conflicted with or will conflict with, or
has resulted in or will result in a breach of, any of the terms and provisions
of, or has constituted or will constitute a default under, or has resulted in
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or pursuant to the
terms of any indenture, mortgage, deed of trust, note, loan or any other
agreement or instrument evidencing an obligation for borrowed money, or any
other agreement or instrument to which the Company may be bound or to which
any of the property or assets of the Company is subject except (a) where such
default, lien, charge or encumbrance would not have a material adverse effect
on the Company and (b) as described in the Offering Materials; nor will such
action result in any violation of the provisions of the charter or the by-laws
of the Company or, assuming the due performance by the Placement Agent of its
obligations hereunder, any material statute or any material order, rule or
regulation applicable to the Company of any court or of any foreign, federal,
state or other regulatory authority or other government body having
jurisdiction over the Company.
(ix) Subsequent to the dates as of which information
is given in the Offering Materials, and except as may otherwise be indicated
or contemplated herein or therein the Company has not (a) issued any
securities or incurred any liability or obligation, direct or contingent, for
borrowed money, or (b) entered into any transaction other than in the ordinary
course of business, or (c) declared or paid any dividend or made any other
distribution on or in respect of its capital stock. Except as described in
the Offering Materials, the Company has no outstanding obligations to any
officer or director of the Company other than normal payable in connection
with services provided recently.
(x) There are no claims for services in the nature of a
finder's or origination fee with respect to the sale of the Common Stock or
any other arrangements, agreements or understandings that may affect the
Placement Agent's compensation, as determined by the National Association of
Securities Dealers, Inc.
(xi) The Company owns or possesses, free and clear of
all liens or encumbrances and rights thereto or therein by third parties, the
requisite licenses or other rights to use all trademarks, service marks,
copyrights, service names, trade names, patents, patent applications and
licenses necessary to conduct its business (including, without limitation, any
such licenses or rights described in the Offering Materials as being owned or
possessed by the Company) and, except as set forth in the Offering Materials,
there is no claim or action by any person pertaining to, or proceeding,
pending or threatened, which challenges the exclusive rights of the Company
with respect to any trademarks, service marks, copyrights, service names,
trade names, patents, patent applications and licenses used in the conduct of
the Company's businesses (including, without limitation, any such licenses or
rights described in the Offering Materials as being owned or possessed by the
Company) except any claim or action that would not have a material adverse
effect on the Company; the Company's current products, services or processes
do not infringe or will not infringe on the patents currently held by any
third party.
(xii) Subject to the performance by the Placement
Agent of its obligations hereunder the offer and sale of the Securities
complies, and will continue to comply, in all material respects with the
requirements of Rule 506 of Regulation D promulgated by the SEC pursuant to
the 1933 Act and any other applicable federal and state laws, rules,
regulations and executive orders. Neither the Offering Materials nor any
amendment or supplement thereto nor any documents prepared by the Company in
connection with the Offering 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, in light of the circumstances under
which they were made, not misleading. All statements of material facts in the
Offering Materials are true and correct as of the date of the Offering
Materials.
(xiii) All material taxes which are due and payable
from the Company have been paid in full or adequate provision has been made
for such taxes on the books of the Company, except for those taxes disputed in
good faith by the Company
(xiv) None of the Company nor any of its officers,
directors, employees or agents, nor any other person acting on behalf 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 or
instrumentality of any government (domestic or foreign) or any political party
or candidate for office (domestic or foreign) or other person who is or may be
in a position to help or hinder the business of the Company (or assist it in
connection with any actual or proposed transaction) which (A) might subject
the Company to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, or (B) if not given in the past, might have had a
materially adverse effect on the assets, business or operations of the Company
as reflected in any of the financial statements contained in the Offering
Materials, or (C) if not continued in the future, might adversely affect the
assets, business, operations or prospects of the Company in the future.
5. Certain Covenants and Agreements of the Company.
The Company covenants and agrees at its expense and without any expense
to the Placement Agent as follows:
A. To advise the Placement Agent of any material adverse change
in the Company's financial condition, prospects or business or of any
development materially affecting the Company or rendering untrue or misleading
any material statement in the Offering Materials occurring at any time as soon
as the Company is either informed or becomes aware thereof.
B. To use its commercially reasonable efforts to cause the
Common Stock issuable in connection with the Standby Equity Distribution
Agreement to be qualified or registered for sale on terms consistent with
those stated in the Registration Rights Agreement and under the securities
laws of such jurisdictions as the Placement Agent shall reasonably request.
Qualification, registration and exemption charges and fees shall be at the
sole cost and expense of the Company.
C. Upon written request, to provide and continue to provide the
Placement Agent copies of all quarterly financial statements and audited
annual financial statements prepared by or on behalf of the Company, other
reports prepared by or on behalf of the Company for public disclosure and all
documents delivered to the Company's stockholders.
D. To comply with the terms of the Offering Materials.
E. To ensure that any transactions between or among the
Company, or any of its officers, directors and affiliates be on terms and
conditions that are no less favorable to the Company, than the terms and
conditions that would be available in an "arm's length" transaction with an
independent third party.
F. Upon the effectiveness of a registration statement covering
the Securities, the Company shall promptly provide the Placement Agent with an
opinion of Counsel to the Company, which opinion shall be in form and
substance reasonably satisfactory to and the Placement Agent.
G. At or prior to the Closing, the Company shall have been
furnished such documents, certificates and opinions as it may reasonably
require for the purpose of enabling the Placement Agent to review or pass upon
the matters referred to in this Agreement and the Offering Materials, or in
order to evidence the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained.
6. Indemnification and Limitation of Liability.
A. The Company hereby agrees that it will indemnify and hold
the Placement Agent and each officer, director, shareholder, employee or
representative of the Placement Agent and each person controlling, controlled
by or under common control with the Placement Agent within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act or the Rules and
Regulations, harmless from and against any and all loss, claim, damage,
liability, cost or expense whatsoever (including, but not limited to, any and
all reasonable legal fees and other expenses and disbursements incurred in
connection with investigating, preparing to defend or defending any action,
suit or proceeding, including any inquiry or investigation, commenced or
threatened, or any claim whatsoever or in appearing or preparing for
appearance as a witness in any action, suit or proceeding, including any
inquiry, investigation or pretrial proceeding such as a deposition) to which
the Placement Agent or such indemnified person of the Placement Agent may
become subject under the 1933 Act, the 1934 Act, the Rules and Regulations, or
any other federal or state law or regulation, common law or otherwise, arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in (a) Section 4 of this Agreement, (b) the Offering
Materials (except those written statements relating to the Placement Agent
given by the Placement Agent for inclusion therein), (c) any application or
other document or written communication executed by the Company or based upon
written information furnished by the Company filed in any jurisdiction in
order to qualify the Common Stock under the securities laws thereof, or any
state securities commission or agency; (ii) the omission or alleged omission
from documents described in clauses (a), (b) or (c) above of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) the breach of any representation, warranty, covenant or
agreement made by the Company in this Agreement. The Company further agrees
that upon demand by an indemnified person, at any time or from time to time,
it will promptly reimburse such indemnified person for any loss, claim,
damage, liability, cost or expense actually and reasonably paid by the
indemnified person as to which the Company has indemnified such person
pursuant hereto. Notwithstanding the foregoing provisions of this Paragraph
7(A), any such payment or reimbursement by the Company of fees, expenses or
disbursements incurred by an indemnified person in any proceeding in which a
final judgment by a court of competent jurisdiction (after all appeals or the
expiration of time to appeal) is entered against the Placement Agent or such
indemnified person based upon specific finding of fact that the Placement
Agent or such indemnified person's gross negligence or willful misfeasance
will be promptly repaid to the Company.
B. The Placement Agent hereby agrees that it will indemnify and
hold the Company and each officer, director, shareholder, employee or
representative of the Company, and each person controlling, controlled by or
under common control with the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act or the Rules and Regulations, harmless
from and against any and all loss, claim, damage, liability, cost or expense
whatsoever (including, but not limited to, any and all reasonable legal fees
and other expenses and disbursements incurred in connection with
investigating, preparing to defend or defending any action, suit or
proceeding, including any inquiry or investigation, commenced or threatened,
or any claim whatsoever or in appearing or preparing for appearance as a
witness in any action, suit or proceeding, including any inquiry,
investigation or pretrial proceeding such as a deposition) to which the
Company or such indemnified person of the Company may become subject under the
1933 Act, the 1934 Act, the Rules and Regulations, or any other federal or
state law or regulation, common law or otherwise, arising out of or based upon
(i) the material breach of any representation, warranty, covenant or agreement
made by the Placement Agent in this Agreement, or (ii) any false or misleading
information provided to the Company in writing by one of the Placement Agent's
indemnified persons specifically for inclusion in the Offering Materials.
C. Promptly after receipt by an indemnified party of notice of
commencement of any action covered by Section 7(A) or (B), the party to be
indemnified shall, within five (5) business days, notify the indemnifying
party of the commencement thereof; the omission by one (1) indemnified party
to so notify the indemnifying party shall not relieve the indemnifying party
of its obligation to indemnify any other indemnified party that has given such
notice and shall not relieve the indemnifying party of any liability outside
of this indemnification if not materially prejudiced thereby. In the event
that any action is brought against the indemnified party, the indemnifying
party will be entitled to participate therein and, to the extent it may
desire, to assume and control the defense thereof with counsel chosen by it
which is reasonably acceptable to the indemnified party. After notice from
the indemnifying party to such indemnified party of its election to so assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under such Section 7(A) or (B), for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, but the indemnified party may, at its own expense,
participate in such defense by counsel chosen by it, without, however,
impairing the indemnifying party's control of the defense. Subject to the
proviso of this sentence and notwithstanding any other statement to the
contrary contained herein, the indemnified party or parties shall have the
right to choose its or their own counsel and control the defense of any
action, all at the expense of the indemnifying party if (i) the employment of
such counsel shall have been authorized in writing by the indemnifying party
in connection with the defense of such action at the expense of the
indemnifying party, or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to such indemnified party to have charge of
the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of one
additional counsel shall be borne by the indemnifying party; provided,
however, that the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstance, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties. No settlement of any
action or proceeding against an indemnified party shall be made without the
consent of the indemnifying party.
D. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7(A) or
7(B) is due in accordance with its terms but is for any reason held by a court
to be unavailable on grounds of policy or otherwise, the Company and the
Placement Agent shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with the investigation or defense of same) which the other may
incur in such proportion so that the Placement Agent shall be responsible for
such percent of the aggregate of such losses, claims, damages and liabilities
as shall equal the percentage of the gross proceeds paid to the Placement
Agent and the Company shall be responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the 1933 Act shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7(D), any person controlling, controlled by or under common
control with the Placement Agent, or any partner, director, officer, employee,
representative or any agent of any thereof, shall have the same rights to
contribution as the Placement Agent and each person controlling, controlled by
or under common control with the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act and each officer of the Company and
each director of the Company shall have the same rights to contribution as the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against the other party
under this Section 7(D), notify such party from whom contribution may be
sought, but the omission to so notify such party shall not relieve the party
from whom contribution may be sought from any obligation they may have
hereunder or otherwise if the party from whom contribution may be sought is
not materially prejudiced thereby.
E. The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any indemnified person or any
termination of this Agreement.
F. The Company hereby waives, to the fullest extent permitted
by law, any right to or claim of any punitive, exemplary, incidental,
indirect, special, consequential or other damages (including, without
limitation, loss of profits) against the Placement Agent and each officer,
director, shareholder, employee or representative of the placement agent and
each person controlling, controlled by or under common control with the
Placement Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act or the Rules and Regulations arising out of any cause
whatsoever (whether such cause be based in contract, negligence, strict
liability, other tort or otherwise). Notwithstanding anything to the contrary
contained herein, the aggregate liability of the Placement Agent and each
officer, director, shareholder, employee or representative of the Placement
Agent and each person controlling, controlled by or under common control with
the Placement Agent within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act or the Rules and Regulations shall not exceed the
compensation received by the Placement Agent pursuant to Section 2 hereof.
This limitation of liability shall apply regardless of the cause of action,
whether contract, tort (including, without limitation, negligence) or breach
of statute or any other legal or equitable obligation.
7. Payment of Expenses.
The Company hereby agrees to bear all of the expenses in connection with
the Offering, including, but not limited to the following: filing fees,
printing and duplicating costs, advertisements, postage and mailing expenses
with respect to the transmission of Offering Materials, registrar and transfer
agent fees, fees of the Company's counsel and accountants, issue and transfer
taxes, if any. Any expenses of this nature incurred or arranged by the
Placement Agent will only be with the prior written approval of the Company.
8. Termination.
This Agreement shall be co-terminus with, and terminate upon the same
terms and conditions as those set forth in the Standby Equity Distribution
Agreement.
9. Miscellaneous.
A. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all which
shall be deemed to be one and the same instrument.
B. Any notice required or permitted to be given hereunder shall
be given in writing and shall be deemed effective when deposited in the United
States mail, postage prepaid, or when received if personally delivered or
faxed (upon confirmation of receipt received by the sending party), addressed
as follows to such other address of which written notice is given to the
others):
If to Placement Agent, to: Newbridge Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, to: visionGATEWAY, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
C. This Agreement shall be governed by and construed in all
respects under the laws of the State of New Jersey, without reference to its
conflict of laws rules or principles. Any suit, action, proceeding or
litigation arising out of or relating to this Agreement shall be brought and
prosecuted in such federal or state court or courts located within the State
of New Jersey as provided by law. The parties hereby irrevocably and
unconditionally consent to the jurisdiction of each such court or courts
located within the State of New Jersey and to service of process by registered
or certified mail, return receipt requested, or by any other manner provided
by applicable law, and hereby irrevocably and unconditionally waive any right
to claim that any suit, action, proceeding or litigation so commenced has been
commenced in an inconvenient forum.
D. This Agreement and the other agreements referenced herein
contain the entire understanding between the parties hereto and may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
E. If any provision of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Placement
Agent Agreement as of the date first written above.
visionGATEWAY, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
Newbridge Securities Corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President