Exhibit 10.1
VITAL PRODUCTS, INC.
PLACEMENT AGENT AGREEMENT
Dated as of: August 9, 2005.
The undersigned, Vital Products, Inc., (the "COMPANY"), hereby agrees
with U.S. Euro Securities, Inc. (the "PLACEMENTAGENT") and Dutchess
Private Equities Fund, II ,L.P., a Delaware Limited Partnership (the "INVESTOR")
as follows:
1. OFFERING. The Company hereby engages the Placement Agent to act as its
exclusive placement agent in connection with the Investment Agreement
dated the date hereof (the "INVESTMENT 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 Ten Million Dollars ($10,000,000) of the Company's Common Stock,
par value $0.0001 per share (the "COMMON STOCK"), at price per share
equal to the Purchase Price, as that term is defined in the Investment
Agreement. Pursuant to the terms hereof, the Placement Agent shall
render consulting services to the Company with respect to the
Investment Agreement and shall be available for consultation in
connection with the advances to be requested by the Company pursuant
to the Investment Agreement. All capitalized terms used herein and
not otherwise defined herein shall have the same meaning ascribed
to them as in the Investment 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 this Agreement, the Investment Agreement, and the
Registration Rights Agreement, are referred to sometimes hereinafter
collectively as the "OFFERING MATERIALS." The Company's Common
Stock is sometimes referred to hereinafter as the "SECURITIES." The
Placement Agent shall not be obligated to sell any Securities and
this Offering by the Placement Agent shall be solely on a "best
efforts basis."
2. 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.
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(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 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 there under (the "RULES AND REGULATIONS")
or applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all reasonable efforts to
determine (a) whether the Investor is an Accredited Investor and
(b) that any information furnished by the Investor is true and
accurate. The Placement Agent shall have no obligation to insure
that (x) any check, note, draft or other means of payment for the
Common Stock will be honored, paid or enforceable against the
Investor in accordance with its terms, or (y) subject to the
performance of the Placement Agent's obligations and the accuracy
of the Placement Agent's representations and warranties hereunder,
(1) the Offering is exempt from the registration requirements of
the 1933 Act or any applicable state "Blue Sky" law or (2) the
Investor is an Accredited Investor.
(vi) 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 compliance with
all material rules and regulations applicable to the Placement Agent
generally and applicable to the Placement Agent's participation in the
Offering.
3. 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 Investment 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 Investment
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 Investment Agreement have been duly
authorized and, when issued and paid for in accordance with (x) this
Agreement, the Equity Line of Agreement and the certificates/
instruments representing such Securities, (y) 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.
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(ii) The Company has a duly authorized, issued and outstanding
capitalization as set forth herein and in the Investment 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
Investment Agreement, dated the date hereof 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.
As of the date hereof, the authorized capital stock of the Company
consists of 100,000,000 shares of Common Stock, par value $0.0001 per
share of which 10,750,000 shares of Common Stock are issued and
outstanding and 1,000,000 prefered shares of wich 0 shares are issued
and outstanding.
(iii) The Common Stock to be issued in accordance with this
Agreement and the Investment Agreement has been duly authorized
and when issued and paid for in accordance with this Agreement, the
Investment 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.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR.
A. The Investor represents, warrants and covenants as follows:
(i) The Investor has the necessary power to enter into this
Agreement and to consummate the transactions contemplated hereby.
(ii) The execution and delivery by the Investor 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 Investor is
a party or by which the Investor or its properties are bound, or any
judgment, decree, order or, to the Investor's knowledge, any statute,
rule or regulation applicable to the Investor. This Agreement when
executed and delivered by the Investor, will constitute the legal,
valid and binding obligations of the Investor, 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) The Investor will promptly forward copies of any and all
due diligence questionnaires compiled by the Investor to the Placement
Agent.
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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 Equity Line of Credit 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 and the Investor 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 and the Investor 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 deliver, during the registration period of the Equity Line Credit
Agreement, to the Placement Agent upon the Placement Agent's request,
(i) within forty five (45) days, a statement of its income for each
such quarterly period, and its balance sheet and a statement of changes
in stockholders' equity as of the end of such quarterly period, all in
reasonable detail, certified by its principal financial or accounting
officer;
(ii) within ninety (90) days after the close of each fiscal year, its
balance sheet as of the close of such fiscal year, together with a
statement of income, a statement of changes in stockholders' equity
and a statement of cash flow for such fiscal year, such balance sheet,
statement of income, statement of changes in stockholders' equity and
statement of cash flow to be in reasonable detail and accompanied by a
copy of the certificate or report thereon of independent auditors if
audited financial statements are prepared; and
(iii) a copy of all documents, reports and information furnished to
its stockholders at the time that such documents, reports and
information are furnished to its stockholders.
E. To comply with the terms of the Offering Materials.
F. 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.
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6. INDEMNIFICATION.
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 SEC's Rules and Regulations promulgated there under (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 an indemnified
person 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 6(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 conduct of the Placement Agent or its
officers, employees or representatives in its acting as Placement
Agent for the Offering or (ii) the material breach of any
representation, warranty, covenant or agreement made by the Placement
Agent in this Agreement (iii) any false or misleading information
provided to the Company by one of the Placement Agent's indemnified
persons. Notwithstanding the foregoing provisions of this Paragraph
6(B), any such payment or reimbursement by the Placement Agent 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 such indemnified person based upon specific
finding of fact as to such indemnified person's gross negligence or
willful misfeasance will be promptly repaid to the Placement Agent.
Placement Agent shall not be responsible for any such indemnity
payment, loss, claim, damage or liability beyond what amount of the
gross proceeds was paid to them.
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C. The Investor 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)
the conduct of the Investor or its officers, employees or
representatives in its acting as the Investor for the Offering or
(ii) the material breach of any representation, warranty, covenant or
agreement made by the Investor in the Offering Materials (iii) any
false or misleading information provided to the Placement Agent by one
of the Investor's indemnified persons.
D. The Placement Agent hereby agrees that it will indemnify and hold the
Investor and each officer, director, shareholder, employee or
representative of the Investor, and each person controlling, controlled
by or under common control with the Investor 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 Investor or such indemnified person of the Investor 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 conduct of the
Placement Agent or its officers, employees or representatives in its
acting as the Placement Agent for the Offering or (ii) the material
breach of any representation, warranty, covenant or agreement made by
the Placement Agent in this Agreement (iii) any false or misleading
information provided to the Investor by one of the Placement Agent's
indemnified persons. Notwithstanding the foregoing provisions of this
Paragraph 6(D), any such payment or reimbursement by the Placement
Agent 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 such indemnified person based upon
specific finding of fact as to such indemnified person's gross
negligence or willful misfeasance will be promptly repaid to the
Placement Agent. Placement Agent shall not be responsible for any
such indemnity payment, loss, claim, damage or liability beyond what
amount of the gross proceeds was paid to them.
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E. Promptly after receipt by an indemnified party of notice of
commencement of any action covered by Section 6(A), (B), (C) or (D),
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 6(A), (B), (C), or (D) 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.
F. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 6(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 6(F), 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
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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 6(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.
The indemnity and contribution agreements contained in this Section 6
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.
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, and expenses, fees of the Company's counsel and accountants,
issue and transfer taxes, if any.
8. CONDITIONS OF CLOSING. The Closing shall be held at the offices of the
Investor or its counsel. The obligations of the Placement Agent
hereunder shall be subject to the continuing accuracy of the
representations and warranties of the Company herein as of the
date hereof and as of the Date of Closing (the "Closing Date") with
respect to the Company as if it had been made on and as of such
Closing Date; the accuracy on and as of the Closing Date of the
statements of the officers of the Company made pursuant to the
provisions hereof; and the performance by the Company on and as
of the Closing Date of its covenants and obligations hereunder and
to the following further conditions:
A. Upon the effectiveness of a registration statement covering the
Investment Agreement, the Placement Agent shall receive the opinion
of Counsel to the Company, dated as of the date thereof, which opinion
shall be in form and substance reasonably satisfactory to the
Investor, their counsel and the Placement Agent.
B. At or prior to the Closing, the Placement Agent shall have been
furnished such documents, certificates and opinions as it may
reasonably require for the purpose of enabling them 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.
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C. At and prior to the Closing, (i) there shall have been no material
adverse change nor development involving a prospective change in the
condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such
condition is set forth in the Offering Materials; (ii) there shall
have been no transaction, not in the ordinary course of business
except the transactions pursuant to the Securities Purchase Agreement
entered into by the Company which has not been disclosed in the
Offering Materials or to the Placement Agent in writing; (iii) except
as set forth in the Offering Materials, the Company shall not be in
default under any provision of any instrument relating to any
outstanding indebtedness for which a waiver or extension has not
been otherwise received; (iv) except as set forth in the Offering
Materials, the Company shall not have issued any securities (other
than those to be issued as provided in the Offering Materials) or
declared or paid any dividend or made any distribution of its capital
stock of any class and there shall not have been any change in the
indebtedness (long or short term) or liabilities or obligations of
the Company (contingent or otherwise) and trade payable debt; (v) no
material amount of the assets of the Company shall have been pledged
or mortgaged, except as indicated in the Offering Materials; and (v) no
action, suit or proceeding, at law or in equity, against the Company
or affecting any of its properties or businesses shall be pending or
threatened before or by any court or federal or state commission,
board or other administrative agency, domestic or foreign, wherein
an unfavorable decision, ruling or finding could materially adversely
affect the businesses, prospects or financial condition or income of
the Company, except as set forth in the Offering Materials. D. At
Closing, the Placement Agent shall receive a certificate of the
Company signed by an executive officer and chief financial officer,
dated as of the applicable Closing, to the effect that the conditions
set forth in subparagraph (C) above have been satisfied and that, as
of the applicable closing, the representations and warranties of the
Company set forth herein are true and correct.
10. PLACEMENT AGENT FEE: The Company agrees to pay U.S. Euro Securities,
a registered broker dealer, a maximum of $10,000 as a fee payable
from 1% (one percent) of the Put Amount on each draw.
11. 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:
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If to Placement Agent, to:
▇▇▇ ▇▇▇▇▇
U.S. Euro Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
If to the Company, to:
Vital Products, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇
Canda
Tel: ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇
If to the Investor:
Dutchess Private Equities fund, II ,LP
▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address of which written notice is given to the others.
C. This Agreement shall be governed by and construed in all respects under
the laws of the State of Delaware 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 Commonwealth of Massachusetts as provided by law. The parties
hereby irrevocably and unconditionally consent to the jurisdiction
of each such court or courts located within the Commonwealth of
Massachusetts 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
COMPANY:
Vital Products, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CEO
PLACEMENT AGENT:
U.S. EURO SECURITIES
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
/s/ ▇▇▇▇▇▇▇ Dudzinal
-------------------------------
Name: ▇▇▇▇▇▇▇ Dudzinal
Title: CEO, Compliance Department
INVESTOR:
DUTCHESS PRIVATE EQUITIES FUND, II ,L.P.
BY ITS GENERAL PARTNER DUTCHESS
CAPITAL MANAGEMENT, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: A Managing Member
11
