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Exhibit 10.1
VISION ACQUISITION II, INC.
Private
Placement of Units
PLACEMENT AGENCY AGREEMENT
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Dated as of March 19,
2008 |
Placement
Agent
Placement
Agent’s Address
Ladies
and Gentlemen:
Vision
Acquisition II, Inc., a Delaware corporation (the
“Company”) proposes to offer for sale (the
“Offering”) in a private offering pursuant to
Section 4(2) and/or Section 4(6) of the Securities Act of
1933, as amended (the “Act”), and Rule 506 of
Regulation D promulgated thereunder, a minimum of $8,000
(the “Minimum Offering”) of units
(“Units”). Each Unit consists of 10,000 shares of
Common Stock, par value $.0001 per share (the “Common
Stock”). Each investor (“Investor”) may
purchase only one Unit at a per Unit price of $200, or $.02
per share. The Units are being offered during an offering
period commencing on the date hereof and expiring the earliest
of: (i) 60 days thereafter, unless extended by the Company and
the Placement Agent (defined below) for up to an additional
sixty (60) days; (ii) the sale of Units constituting at least
the Minimum Offering, or (iii) the termination of the Offering
by the Company and the Placement Agent (such period, as same
may be extended, being hereinafter referred to as the
"Offering Period"). Offers and sales of the Units shall be
solely to Accredited Investors (as defined in Regulation D).
This Agreement shall confirm our agreement concerning XXX.
acting as our exclusive placement agent (the “Placement
Agent” or “XXX”) in connection with the
offer and sale of the Units.
l.
Appointment of Placement Agent.
On
the basis of the representations and warranties contained
herein, and subject to the terms and conditions set forth
herein, the Company hereby appoints XXX as its Placement Agent
and grants to it the exclusive right to offer, as its agent,
the Units pursuant to the terms of this Agreement. The Company
expressly acknowledges and agrees that XXX’s obligations
hereunder are not on a firm commitment basis and that the
execution of this Agreement does not constitute a commitment
by XXX to purchase the Units and does not ensure the
successful placement of the Units or any portion thereof.
Further, XXX’s obligation to use its best efforts to
assist the Company in the Offering is subject to the
completion of a due diligence review of the Company, and the
market for such securities generally, as well as general
market conditions. On the basis of such representations and
warranties, and subject to such conditions, XXX hereby accepts
such an appointment and agrees to use its reasonable best
efforts to secure subscriptions to purchase the
Units.
2.
Terms
of the Offering.
(a)
The Company shall prepare and deliver to the Placement Agent
copies of a Confidential Private Placement Memorandum (the
“PPM”), relating to, among other things, the
Company, the Common Stock and the terms of the sale of the
Units. The PPM, including all exhibits and appendices thereto,
the Subscription Agreement, Accredited Investor Questionnaire
and Registration Rights Agreement, are referred to herein as
the “Offering Documents” and shall include any
supplements or amendments in accordance with this Agreement.
The Company shall utilize the services of securities counsel
with experience in private placement offerings and the rules
and regulations of the Securities and Exchange Commission
(“SEC”) in drafting the Offering
Documents.
(b)
The Offering shall consist of the Minimum Offering of $8,000
of Units. There is no maximum number of Units being offered.
The terms of the Offering and Common Stock are further
described in the Offering Documents which are incorporated
herein. In the event a subscription is not accepted, such
rejected subscription funds will be returned to the subscriber
without interest or deductions.
(c)
The Units are being offered on a “best efforts all or
none” basis as to the Minimum Offering. The Offering
shall commence on the date that the Company delivers to the
Placement Agent the Offering Documents that have been
completed to the reasonable satisfaction of the Placement
Agent and its counsel, and shall expire at 5:00 p.m., New York
time, on a date which is the earliest to occur of (ii) 60 days
thereafter and may be extended for up to an additional 60-day
period at the discretion of the Company and Placement Agent,
(ii) in the discretion of the Company, the sale of Units
constituting at least the Minimum Offering, and (iii)
termination of the Offering Period by the Company and the
Placement Agent.
(d)
Each prospective Investor who desires to purchase the Units
shall deliver to the Placement Agent a fully executed
subscription agreement and questionnaire (collectively,
hereinafter the “Subscription Agreement”), in the
form annexed to the PPM and immediately available funds in the
amount necessary to purchase the number of Units such Investor
desires to purchase. Neither the Company nor the Placement
Agent shall have any obligation to independently verify the
accuracy or completeness of any information contained in any
Subscription Agreement or the authenticity, sufficiency, or
validity of any check delivered by any Investor in payment for
Units.
(e)
The Placement Agent shall deliver each subscription funds
received from an Investor to the Company for deposit in a
segregated escrow account (the “Escrow Account”)
at Signature Bank institution, which shall serve as the escrow
agent for this Offering (the “Escrow Agent”),
pursuant to that certain escrow agreement by and among the
Company, XXX and the Escrow Agent, dated March 19, 2008 (the
“Escrow Agreement”) and shall deliver the executed
copies of the Subscription Agreement received from such
Investor to the Company. All funds shall be held in the
segregated account pending acceptance of the subscription. The
Company shall notify the Placement Agent promptly of the
acceptance or rejection of any subscription.
(f)
XXX may engage other persons selected by XXX to assist XXX in
the Offering (each such broker/dealers being hereinafter
referred to as a "Selling Group Member") and XXX may allow
such Selling Group Member such part of the compensation and
payment of expenses payable to XXX under Section 5 hereof as
XXX shall determine. Any such Selling Group Member shall be a
member firm in good standing as a broker-dealer under the
rules of the Financial Industry Regulatory Authority, Inc
(“FINRA”). Each Selling Group Member shall be
required to agree in writing to comply with the provisions of
this Section 2. The Company hereby agrees to make such
representations and warranties to, and covenants and
agreements with, any Selling Group Member (including an
agreement to indemnify such Selling Group Member on terms
substantially similar to Section 12 hereof) as provided
herein.
3.
Closings: Release of Funds.
The
date that the subscriptions of at least the Minimum Offering
amount are accepted by the Company and funds are released from
the Escrow Account shall be deemed the “Closing
Date.” At least one (1) day prior to the release of
funds, the Company and the Placement Agent shall send written
notice to each other, which notice shall state the amount of
funds to be released, the name and address of each subscriber
whose subscription has been accepted, and the amount of each
subscription.
4.
Representations
and Warranties of the Placement Agent.
The
Placement Agent represents and warrants to and covenants with
the Company as follows:
(a)
The
Placement Agent is duly incorporated and validly existing and
in good standing under the laws of its state of
incorporation.
(b)
The
Placement Agent is, and at the time of the Closing will be, a
member in good standing of FINRA.
(c)
Sales
of Units by the Placement Agent will only be made in such
jurisdictions in which the Placement Agent or a Selling Group
Member is a registered broker-dealer or where an applicable
exemption from such registration exists.
(d)
Offers
and sales of Units by the Placement Agent will be made only in
accordance with this Placement Agreement and in compliance
with the provisions of Section 4(2) and Section 4(6) of the
Act and Rule 506 of Regulation D promulgated thereunder (it
being understood and agreed that the Placement Agent shall be
entitled to rely upon the information and statements provided
by the Investor in the Subscription Agreement), and the
Placement Agent will furnish to each investor a copy of the
Offering Documents prior to accepting any subscription for the
Units.
5.
Compensation.
(a)
The
Placement Agent shall be entitled, on the Closing Date, as
compensation for XXX’s services as Placement Agent under
this Agreement, to selling commissions equal to 10 % of the
gross proceeds received by the Company from the sale of the
Units effected at the Closing (the “Placement
Agent’s Fees”).
(b)
Concurrent
with, and as a condition to, the Closing of the Offering, the
Company shall sell to the Placement Agent (or its designated
affiliates), for nominal consideration, 285,000
shares
of Common Stock (the “Placement Agent’s
Shares” and together with the Placement Agent’s
Fees, the “Placement Agent’s
Compensation”). The
Company covenants and agrees that with respect to registration
under the Act of the shares of Common Stock, the Placement
Agent shall be entitled to the same registration rights as
provided to Investors in the Offering.
6.
Representations and Warranties of the Company.
(a)
The Company represents and warrants to, and agrees with, the
Placement Agent that as of the date hereof and as of the
Closing Date (except as affected by the
Offering):
(i)
Assuming the accuracy of the representations and warranties of
the Investors set forth in the Subscription Agreement and the
representations and warranties of the Placement Agent set
forth herein, the Offering Documents (a) contain, and at all
times during the period from the date hereof to and including
the Closing Date, will contain all information required to be
contained therein, if any, pursuant to Rules 502 and 506 of
Regulation D and all applicable federal and/or state
securities and “blue sky” laws, (b) do not, and
during such period will not, contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
in light of the circumstances made therein not misleading, and
(c) no supplemental sales material supplied or approved in
writing by any officer of the Company (when read in
conjunction with the Offering Documents, whether designated
only for broker-dealer use or otherwise) includes or will
include any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the
statements therein in the light of the circumstances under
which they were made not misleading. Each contract, agreement,
instrument, lease, license, or other document required to be
described in the Offering Documents shall be, and have been,
accurately described therein.
(ii)
No information (it being understood that neither the Company
nor any of its officers or directors or employees shall
provide any written information to any Investor which is not
contained in the Offering Documents) provided by the Company
to Investors pursuant to Section 7(f) hereof shall contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein in light of circumstances made
therein not misleading.
(iii)
The Company has not, directly or indirectly, solicited any
offer to buy or offered to sell any Common Stock or any other
securities of the Company during the twelve-month period
ending on the date hereof except as may be properly described
in the Offering Documents, and has no present intention to
solicit any offer to buy or to offer to sell any of the Units,
any Common Stock or any other securities of the Company other
than pursuant to this Agreement.
(iv)
The Company is, and at all times during the period from the
date hereof to and including the Closing Date will be, a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware, with full
corporate power and authority, and has obtained all necessary
consents, authorizations, approvals, orders, licenses,
certificates, and permits and declarations of and from, and
has made filings with, all federal, state and local
authorities, to own, lease, license, and use its properties
and assets and to conduct its business as presently conducted
as described in the Offering Documents and/or in any such case
where the failure to have any of the foregoing would not have
a material adverse effect on the Company's presently conducted
business. As of the date hereof, the Company is, and at all
times during the period from the date hereof to and including
the Closing Date, duly qualified to do business and is in good
standing in every jurisdiction in which its ownership,
leasing, licensing, or use of property and assets or the
conduct of its business makes such qualification necessary
except where the failure to be so qualified would not have a
material adverse effect on the Company's
business.
(v)
The documents filed by the Company with the SEC (the
“SEC Reports”), do not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, all in light of the
circumstances under which they were made. Each statute,
regulation, legal and governmental proceeding, contract,
agreement, instrument, lease, license, or other document
described in the SEC Reports has been accurately described
therein in all material respects.
(vi)
No document provided by the Company to Investors pursuant to
Section 6(a)(vii) hereof, and no oral information provided by
the Company to Investors, will contain any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading. Contracts to which the Company is a party
provided by the Company to Investors shall not be deemed to
contain any untrue statement of a material fact or to omit to
state any material fact if the contract so provided is a true,
correct and complete copy of such contract, as amended or
modified through the date it is so provided.
(vii)
The Company does not own, directly or indirectly, an equity or
other ownership interest equal to or greater than 50 percent
in any corporation or other entity.
(viii)
Since the dates as of which information is given in the
Offering Documents, other than as set forth therein, (A) there
has not been any material adverse change or any development
involving a prospective material adverse change in the general
affairs, business, prospects, properties, management,
condition (financial or otherwise) or results of operations of
the Company, whether or not arising from transactions in the
ordinary course of business, (B) except in the ordinary
course of business, the Company has not incurred will not have
incurred, any material liabilities or obligations, direct or
indirect, or have entered into any material transaction, (C)
the Company has not and will not have paid or declared any
dividends or other distributions on its capital stock and (D)
there has not been any change in the capital stock of the
Company or any material change in the short-term or long-term
debt of the Company. Notwithstanding this, XXX acknowledges
that as a shell company, its ability to continue as a going
concern is in question.
(ix)
The Company’s auditors, whose report on the
Company’s audited financial statements is included in
the SEC Reports included as part of the Offering Documents,
are independent public accountants with respect to the Company
as required by the Act and the rules and regulations
thereunder.
(x)
The Company’s financial statements, together with
related notes and schedules of the Company, included as part
of the Offering Documents comply in all respects with the
requirements of the Act and the rules and regulations
thereunder and present fairly the financial position of the
Company on the respective dates indicated and its statement of
operations for the respective periods covered thereby. Any
condensed financial information appearing in the Offering
Documents is fairly stated in all material respects in
relation to the financial statements of the Company from which
they have been derived. Such financial statements, and related
notes and schedules, have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis through the entire period
involved.
(xi)
Except
as described in the Offering Documents, there is no action,
suit, investigation or proceeding pending or threatened before
or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or
foreign, or arbitrator to which the Company is or may become a
party or of which any property of the Company is subject or
affected that (A) might affect the consummation of the
transactions contemplated under this Agreement, including the
issuance or validity of the Common Stock offered hereby, or
(B) might have a material adverse effect on the condition
(financial or otherwise), sales, properties, earnings, net
worth, prospects, results of operations or businesses of the
Company, taken as a whole (“Material Adverse
Effect”), or any of its principal officers. All pending
legal or governmental proceedings to which the Company is a
party or of which any of its properties are subject or
affected which are not described in the Offering Documents,
including ordinary routine litigation incidental to the
business, would not have a Material Adverse Effect. No labor
dispute with the employees of the Company exists or is
threatened or imminent that could have a Material Adverse
Effect.
(xii)
The
Company has all approvals, licenses, franchises,
authorizations and permits (collectively,
“permits”) necessary under all applicable
statutes, codes, rules, regulations, orders and decrees of
governments or governmental bodies (collectively,
“laws”), which are material to the ownership,
lease or use of their respective properties or the conduct of
their respective businesses as described in the Offering
Documents. The Company has not received notice of any
proceedings relating to the revocation or modification of any
such permits which, singly or in the aggregate, would have a
Material Adverse Effect, and the Company is in all material
respects in compliance with such permits and
laws.
(xiii)
The Company does not own or license any patents, patent
applications, inventions, trademarks, trade names,
applications for registration of trademarks, copyrights,
know-how, trade secrets, licenses and rights in any thereof
(“Proprietary Rights”). The Company does not have
any knowledge of, and the Company has not received any notice
of any pending conflict with or infringement of, the rights of
others with respect to any Proprietary Rights or with respect
to any license of Proprietary Rights. No action, suit,
arbitration, or legal, administrative or other proceeding, or
domestic or foreign governmental investigation is pending or,
to the best of the Company's knowledge, threatened, which
involves any Proprietary Rights. The Company is not subject to
any judgment, order, writ, injunction or decree of any court
or any Federal, state, local, foreign or other governmental
department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, or
has entered into or is a party to any contract which restricts
or impairs the use of any such Proprietary Rights in a manner
which would have a material adverse effect on the use of any
of the Proprietary Rights. The Company has not received
written notice of any pending conflict with or infringement
upon such third party proprietary rights.
(xiv)
The Company has an authorized, issued and outstanding
capitalization as set forth in the Offering Documents; all of
the issued shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and
nonassessable and conform to the descriptions thereof
contained in the Offering Documents; and none of the issued
shares of capital stock of the Company has been issued in
violation of any preemptive or similar right. Except as
described in the Offering Documents, there are no outstanding
(A) securities or obligations of the Company convertible into
or exchangeable for any shares of capital stock of the
Company, (B) warrants, rights or options to subscribe for or
purchase from the Company any such capital stock or any such
convertible or exchangeable securities or obligations or (C)
obligations for the Company to issue such shares, any such
convertible or exchangeable securities or obligations, or any
such warrants, rights or obligations.
(xv)
Except
as described in the Offering Documents, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities being registered pursuant to any
registration statement filed by the Company under the
Act.
(xvi)
The
shares of Common Stock to be issued and sold to Investors as
provided in the Subscription Agreement have been duly
authorized and when issued and delivered against payment
therefor, will be validly issued, fully paid and nonassessable
and will conform to the description thereof in the Offering
Documents, and there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Common Stock issuable
to Investors under the Company's Certificate of Incorporation
or by-laws or any agreement or other outstanding instrument to
which the Company is a party or is otherwise known to the
Company.
(xvii)
The
Placement Agent’s Shares have has been duly authorized
and, when issued and delivered against payment therefor, will
be validly issued, fully paid and nonassessable; and there are
no preemptive or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of the
Placement Agent’s Shares pursuant to the Company's
Certificate of Incorporation or by-laws or any agreement or
other outstanding instrument to which the Company is a party
or is otherwise known to the Company.
(xviii)
All
offers and sales of securities of the Company issued prior to
the date hereof were at all relevant times duly registered or
exempt from the registration requirements of the Act or issued
in compliance with the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) and the rules and
regulations thereunder and were duly registered or the subject
of an available exemption from the registration requirements
of the applicable state securities or Blue Sky laws and all
applicable securities laws and regulations of any foreign
country in which such securities were offered or
sold.
(xix)
The
Company is not (A) in violation of its Certificate of
Incorporation or by-laws, (B) in violation of any statute,
law, rule, code, administrative regulation, ordinance,
judgment, order or decree of any government, governmental
instrumentality, court, domestic or foreign, or arbitration
panel or other body applicable to it where such violation
would have a Material Adverse Effect or (C) in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage,
deed of trust, voting agreement, voting trust agreement, loan
agreement, bond, debenture, note or other evidence of
indebtedness, lease, sublease, license agreement, contract or
other agreement or instrument to which it is a party or by
which it or any of its respective properties are bound or
affected (“Contracts”), where such defaults,
singly or in the aggregate, would have a Material Adverse
Effect. To the knowledge of the Company, no other party under
any Contract is in default in any material respect thereunder
which affects the Company.
(xx)
The
Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the
Subscription Agreement, the Registration Rights Agreement and
the Escrow Agreement. This Agreement, the Subscription
Agreement, the Registration Rights Agreement and the Escrow
Agreement have been duly and validly authorized, executed and
delivered by the Company, and each such agreement constitutes
a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its
respective terms, except as rights to indemnity and
contribution hereunder and thereunder may be limited by the
securities laws of the United States and except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws or equitable principles
affecting the enforcement of creditors' rights
generally;
(xxi)
The
issuance of the shares of Common Stock and the Placement
Agent’s Shares, the execution, delivery and performance
of this Agreement, Subscription Agreement and the Registration
Rights Agreement, the delivery of the Placement Agent’s
Shares, and the consummation of the transactions contemplated
hereby and thereby, do not and will not conflict with or
result in a material breach or violation of any of the terms
or provisions of, or constitute a material default under, or
give rise to rights of termination under, or result in the
acceleration of any obligation under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to the terms of
any indenture, mortgage, deed of trust, voting agreement,
voting trust agreement, loan agreement, bond, debenture, note
or other evidence of indebtedness or result in a material
breach or violation of any of the terms or provisions of, or
constitute a material default under any lease, sublease,
contract or other agreement or instrument to which the Company
is a party or by which the Company or any of its properties or
assets are bound or affected, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or by-laws of the Company or a material
violation of any applicable statute, law, rule, code,
administrative regulation, ordinance, judgment, order or
decree of any government, governmental instrumentality or
court, domestic or foreign, or arbitration panel or other
body, having jurisdiction over the Company or any of its
properties or obligations.
(xxii)
No
consent, approval, authorization, license or order of or from,
or registration, qualification, declaration or filing with,
federal, state, local, foreign or other governmental authority
or any person or court, administrative agency, or other body
is required for the consummation of the transactions
contemplated in this Agreement, or the Offering Documents,
except as may have been made or may be required obtained under
FINRA, any federal or state securities laws or Blue Sky laws
or pursuant to Regulation D.
(xxiii)
The
Company is in compliance in all material respects with all
applicable federal, state and local environmental laws and
regulations, including, without limitation, those applicable
to emissions to the environment, waste management and waste
disposal (collectively, the “Environmental Laws”),
except for any noncompliance as may be described in the
Offering Documents, and to the best of the Company's
knowledge, there are no circumstances that would prevent,
interfere with, or materially increase the cost of such
compliance in the future. Except as set forth in the Offering
Documents, there is no claim under any Environmental Law,
including common law (“Environmental Claim”),
pending or, to the knowledge of the Company, threatened
against or affecting the Company and, to the best of the
Company's knowledge, there are no past or present actions,
activities, circumstances, events or incidents, including,
without limitation, releases of any material into the
environment, that could form the basis of any Environmental
Claim against or affecting the Company or its Controlled
Subsidiaries.
(xxiv)
The
Company does not own or lease any real property.
(xxv)
The
Company (A) has paid all federal, state, local and foreign
taxes for which it is liable and has furnished all information
returns it is required to furnish pursuant to the Internal
Revenue Code of 1986, as amended, (B) has established adequate
reserves for such taxes which are not due and payable and (C)
does not have any tax deficiency or claims outstanding,
proposed or assessed against it.
(xxvi)
The
Company maintains insurance of the types and in amounts which
it deems adequate for its business, all of which are in full
force and effect.
(xxvii)
Other than set forth herein, there are no claims, payments,
issuances, arrangements or understandings, whether oral or
written, for services in the nature of a finder's or
origination fee with respect to the sale of the
Units.
(xxviii)
Neither
the Company nor, to the best of the Company’s knowledge,
any
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