Exhibit No. 10.8
Blackhawk Capital Group
BDC, Inc.
Subscription
Agreement
and purchaser
questionnaire
THIS SUBSCRIPTION AGREEMENT, made as of this
5 th
day of February 2009, by and between
Blackhawk Capital Group BDC, Inc., a Delaware corporation (the
"Company"), with its address at 14 Wall Street, 11
th Floor, New York, New York 10005, and
EquitySmith, Inc. , 760 Market Street, Suite
856, San Francisco, CA 94102 (the "Purchaser").
NOW, THEREFORE, in consideration of the mutual
promises contained herein, and each intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE VI – PURCHASE OF
THE COMMON STOCK
Section 6.1 Purchase and Sale of Common
Stock . The Company agrees to issue, sell and
deliver to the Purchaser and the Purchaser agrees to purchase and
accept from the Company, four hundred thousand (400,000) shares of
Common Stock, par value $0.00001 per share, of the Company (the
"Shares") at $5.00 per Share, for an aggregate price of Two million
dollars ($2,000,000.00) (the "Purchase Price").
ARTICLE VII –
REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 7.1 Company Representations and
Warranties . The Company represents and warrants to
the Purchaser as follows:
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Incorporation . The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware.
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Capitalization . The authorized capital stock of the
Company is 1,000,000,000 shares of Common Stock ("Common Stock"),
par value $0.00001 per Share. There are no authorized or
outstanding shares of preferred stock. As of February 5,
2009, there are 32,467,484 shares of Common Stock issued and
outstanding.
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Shares . The Shares, when issued, sold, and
delivered in accordance with the terms of this Agreement, will be
duly and validly issued, fully paid, and
nonassessable. All corporate action required to be taken
by or on behalf of the Company to authorize the Company to enter
into and carry out this Agreement, and for the authorization,
issuance and delivery of the Shares has been duly and properly
taken.
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Private
Placement Memorandum . Except as set forth below and in
the Company's Confidential Private Placement Memorandum dated
January 15, 2009 ("Private Placement Memorandum"), neither the
Company nor any of its agents or representatives has made any
agreements or taken any actions which may cause anyone to be
entitled to a commission or a finder's fee as a result of the
execution, delivery or performance of this Agreement or
consummation of the transactions contemplated hereby.
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Securities
Act of 1933 . Based in material part upon the
representations herein of the Purchaser, the Company has complied
and will comply with all applicable federal and state securities
laws in connection with the offer, issuance and sale of the Shares
hereunder. Neither the Company nor anyone acting on its
behalf, directly or indirectly, has or will sell, offer to sell or
solicit offers to buy any of the Shares or similar securities to,
or solicit offers with respect thereto from, or enter into any
negotiations relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of
the Shares under the registration provisions of the Securities Act
and applicable state securities laws, and neither the Company nor
any of its affiliates, nor any person acting on its or their
behalf, has engaged in an form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of any of the
Shares.
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Proceeds . The Company shall use the net
proceeds of the Purchase Price to be received from Purchaser as
specified in "Use of Proceeds" in the Private Placement
Memorandum.
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No
Litigation . To the knowledge of the Company,
there is no litigation or proceeding or investigation pending or
threatened against the Company in any federal, state or local
court, or before any administrative agency or arbitrator, or before
any other tribunal duly authorized to resolve disputes, which seeks
to enjoin or prohibit, or otherwise questions the validity of, the
sale of Shares under this Agreement. The Company
completed a rescission offer with the purchasers of its Common
Stock in the Company's Regulation E offering under the Securities
Act that was conducted in 2004 and 2005 because certain State
filings were not made when that offering was
conducted. The rescission offer is described in the
Private Placement Memorandum.
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Placement
Agents . Except for John W. Loofbourrow
Associates, Inc. ("JWL") and EquitySmith, Inc.
("ESI"), pursuant to the terms of a placement agent
agreement dated January 16, 2009 between the Company, JWL,
and ESI ("Placement Agent Agreement"), the Company has
not employed any broker or finder or incurred any liability for any
brokerage, placement, commissions, finders' fees, advisory fees or
other similar fees in connection with the sale of
Shares.
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Section 7.2 Purchaser
Warranties . The Purchaser represents and warrants
to the Company as follows:
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Organization
and Standing of the Purchaser . Purchaser is a corporation, limited
liability company or partnership duly incorporated or organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization.
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Authorization and Power . Purchaser has the requisite power
and authority to enter into an perform this Agreement and to
purchase Shares being sold to it hereunder. The
execution, delivery and performance of this Agreement by Purchaser
and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate or partnership
action, and no further consent or authorization of Purchaser or its
Board of Directors, stockholders, or partners, as the case may be,
is required. When executed and delivered by the
Purchaser, this Agreement shall constitute the valid and binding
obligation of Purchaser enforceable against Purchaser in accordance
with its terms, except as such enforceability may be
limited
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