Exhibit 10.1
PLACEMENT
AGENT AGREEMENT
July 20, 2009
Grant Bettingen, Inc.
Attn: Deborah Scott, President
4100 Newport Pl., Suite 600
Newport Beach, CA 92669
Dear Ms. Scott:
Guardian Technologies International, Inc.
(the “Company”) proposes to offer, issue and sell in a
private offering up to $5,000,000 of Units of securities
(“Units”), each Unit consisting of (a) 48,780 shares of
the Company’s common stock, $.001 par value per share
(“Common Stock”), and (b) Class N Common Stock Purchase
Warrants to purchase 97,560 shares of Common Stock (the
“Class N Warrants”) (the Units and the Class N Warrants
and the Common Stock included in the Units, the
“Securities”) to accredited investors only (the
“Offering”) for a purchase price of $20,000 per Unit (a
purchase price per share of $0.41). Grant Bettingen, Inc. (the
“Placement Agent”) hereby confirms its agreement with
the Company to act as a Placement Agent for
the Offering on a best efforts basis and in accordance with the
following basic terms and conditions. Other registered
broker-dealers may participate in a best efforts selling group to
offer the Securities pursuant to the terms of an agreement to be
entered into between the Placement Agent and such registered
broker-dealer, the terms of which shall be reasonably acceptable to
the Company.
1.
Private Placement by
Company
The Offering will be made pursuant to
Rule 506 of Regulation D under the Securities Act of 1933, as
amended (the “Securities Act”), and/or Section 4(2) of
the Securities Act.
2.
Appointment as Placement
Agent
The Company hereby appoints Placement
Agent as a Placement Agent for the Offering to sell up to
$5,000,000 of the Company’s Securities.
3.
Procedure of Identifying
Investors
The Placement Agent will identify and
introduce institutional and other accredited investors
(collectively, “Accredited Investors”) to the Company.
Only Accredited Investors will be permitted to purchase the
Securities.
4.
Information Available
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It is understood and agreed between the
Company and the Placement Agent that all documents and other
information relating to the Company’s affairs will be made
available upon request to the Placement Agent and its counsel, and
copies of any such documents will be furnished upon request to the
Placement Agent or its counsel.
5.
Certain Representations by the
Company
The Company will not utilize any
nonlicensed or nonregistered finder in connection with the
Offering. The Company will indemnify the Placement Agent with
respect to any claim for finder’s or similar fees in
connection with the Offering. The Company represents and
warrants that it has not promised or represented to any such person
that any portion of the Securities will be directed or otherwise
made available to such person in connection with the
Offering.
6.
Proceedings
The Placement Agent and the Company will
advise each other immediately and confirm in writing the receipt of
any threat of or the initiation of any steps or proceedings which
would impair or prevent the right to offer the Securities, or the
issuance of any orders or other prohibitions preventing or
impairing the proposed offering by the Securities and Exchange
Commission or any other regulatory authority. In the case of
the happening of any such event, the Company will not acquiesce to
such steps, proceedings or suspension orders, but will actively
defend any such actions or orders unless the Company determines in
good faith after consultation with the Placement Agent to acquiesce
to such actions or orders.
7.
Compensation
(a)
For its services under this Placement
Agent Agreement (this “Placement Agent Agreement” or
“Agreement”), the Company will pay to the Placement
Agent (i) a 100% vested, non-refundable fee of 100,000 restricted
shares of Guardian Technologies International Inc., which the
Company will issue upon signing this Placement Agent Agreement, and
at each closing a Placement Agent fee of (i) 8.0% of the total
gross proceeds raised by Placement Agent in the Offering from the
sale of the Units, payable in cash upon each closing of the
Offering, and (ii) the Company shall issue to the Placement Agent
warrants to purchase the Company’s Common Stock equal to ten
percent (10.0%) of the number of shares of Common Stock issued to
investors in the Offering (but excluding the shares underlying the
Class N Warrants) (the “Placement Warrants”).
Each Placement Warrant shall be exercisable at 110% of the
purchase price of the Class N Warrants sold in the Offering and
otherwise shall have the same terms and conditions as the Class N
Warrants provided to the investors in the transaction. Until
Warrant expiration, all warrants issued to the Placement Agent
and/or investors that are exercised with cash shall pay a
commission of 3% to Placement Agent or its assignees. The
Placement Agent and or its agents shall take all fees in
cash.
(b)
The foregoing outlined in Section 7(a)
above, excludes transactions whereby the Company offers and sells
the Securities to its officers and directors.
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8.
Expenses
The Company shall bear all costs and
expenses incident to the issuance, offer, sale and delivery of the
Securities, including without limitation due diligence expenses and
the legal expenses of legal counsel for both the Company and the
Placement Agent.
The Company agrees to reimburse Placement
Agent for reasonable out-of-pocket expenses, which amount shall not
exceed $1,000 without prior approval of Company, which is to be
applied towards due diligence and legal fees of the Placement
Agent. All fees and expenses payable hereunder are payable in
cash, unless otherwise noted, and shall be a condition to and
payable at each closing.
9.
Securities Filings
The Company’s legal counsel shall
make all filings and/or notices necessary to comply with all
securities law requirements for the Offering, including but not
limited to filing a Form D with the Securities and Exchange
Commission and appropriate blue sky filings as well as Form 8-K
filing, as appropriate. Placement Agent shall provide written
notice to the Company as to the states in which Placement Agent
proposes to offer the Securities for sale on behalf of the Company,
and Placement Agent’s counsel shall provide written notice to
Company counsel confirming those states in which Securities may be
offered and sold. The Company’s legal counsel will also
provide to Placement Agent a copy of the filed Form D and all blue
sky filings and correspondence.
10.
Conflict with the Law
It is understood that if any provision of
this Agreement conflicts with the Securities Act, any rule or
regulation under such Securities Act, the blue sky laws of any
state in which the proposed offering is to be qualified, the
Financial Industry Regulatory Authority (“FINRA”), or
any other governmental authority, either federal or state,
possessing jurisdiction over the sale and issuance of the
Securities, the Company shall meet with Placement Agent and amend
this Agreement to comply with such regulation.
11.
Accurate Information
The Company represents and warrants to
Placement Agent that the Offering documents contain or incorporate
by reference all material information concerning the Company and
its business, affairs, prospects and financial condition, and that
all written information provided Placement Agent with respect to
the business, affairs, prospects and financial condition of the
Company for use in connection with the Offering shall be true,
correct and complete in all material respects.
12.
Due Diligence
Investigation
a.
The Company shall supply and deliver to
Placement Agent’s legal counsel at their offices, within a
reasonable period of time, all information required to enable them
to make a due
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diligence investigation of the Company
and its business prospects as they shall reasonably request and
shall
