Unassociated Document


     

    Exhibit
10.1

    Growthink
Securities, Inc.

    6033 West
Century Street, Suite 150

    Los
Angeles, CA 90045

    (310)823-6505

    


    CONFIDENTIAL

    


    August
21, 2009

    


    Dr. Craig
A Zabala

    Chairman
of the Board, President & Chief Executive Officer

    Blackhawk
Capital Group BDC, Inc.

    


    l4 Wall
Street, Suite 1l00B

    New York,
NY 10005

    


    Dear Dr.
Zabala,

    


    This
letter (the "Agreement") will confirm the engagement of Growthink Securities,
Inc. ("Placement Agent") by Blackhawk Capital Group BDC, Inc., a Delaware
corporation and a business development company registered under the Investment
Company Act of 1940, as amended (the "Company"),as placement agent in connection
with the Company's Rule 506 offering under Regulation D under the Securities Act
of 1933, as amended (the" Securities in common Act"), of up to $250,000,000.00
stock ("Securities" or "Shares") to qualified institutional buyers ("QIBs") and
"accredited investors"(as those terms are defined under the Securities Act)
(the" Investors")(the "Offering"). The Offering will be pursuant to a
Confidential Private Placement Memorandum dated July 8 2009 ("Memorandum") and a
subscription agreement and purchase questionnaire ("Subscription Agreement").
The maximum amount to be raised in the Offering is $250,000,000.00(and
50,000,000 Shares have been sold). There is no minimum requirement for the sale
of Shares by the Company. Closings will occur upon receipt of funds as received.
Investors must be advised that there is no minimum amount of subscriptions that
must be raised in the Offering before the initial closing or any "rolling"
closing can take place. Funds will be placed into an escrow account prior to any
closing. The Company reserves the right to lower the minimum or increase the
maximum at its sole discretion. The purchase price shall be $5.00 per
Share.

    


    
      	
              1)

            	
              Scope
      of Placement Agent's Services. Placement Agent will assist in the
      distribution of Offering Materials (as hereinafter defined) to potential
      investors, report to the Company on the status of potential investors,
      assist in consummating the Offering, and perform such other services, as
      necessary and as requested by the Company, including, but not limited
      to:

            


    

    


    
      	
            	
              (a)

            	
              familiarizing
      itself to the extent it deems appropriate and feasible with the Business
      operations, financial condition, and prospects of the
    Company,

            


    

    
      	
            	
              (b)

            	
              screening
      and contacting prospective investors,
and

            


    

    
      	
            	
              (c)

            	
              assisting
      in negotiations with prospective
investors.

            


    

    


    It is
understood by both parties that Placement Agent intends to solicit interest from
a limited number of potential Investors (QIBs and accredited investors).
Placement Agent will, in its sole discretion, determine the reasonableness of
their efforts and are under no obligation to perform at any level other than
what each deems reasonable. The Company shall retain control of the Offering and
shall have the right to determine (a) whether to accept and close the sale of
the Securities to a specific Investor, (b) whether to close or terminate the
Offering, and (c) the content of the Offering Materials. The Company shall
retain control of the Offering and shall have the right to determine (a) whether
to accept and close the sale of any Securities to a specific Investor, (b)
whether to close or terminate the Offering, (c) whether to change any of the
terms of the Offering, and (d) the content of the Offering
Materials.

     

    
      
        
        

      

      
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              2)

            	
              Fees.
      In return for Placement Agent's services in the placement of Securities,
      the Company will pay Placement Agent a cash fee equal to five percent (5%)
      of the gross proceeds(the "Financing Fee") of any Securities placed by
      Placement Agent with an Investor introduced by Placement Agent that
      consummates an equity investment with the Company in the Offering ("GT
      Protected Investors"). Any Financing Fees payable to Placement Agent will
      be due at the respective closing date(s) of the Offering and shall be
      payable to Placement Agent by the Company. Placement Agent shall not be
      entitled to receive the reimbursement of any expenses from the
      Company.

            


    

    


    
      	
              3)

            	
              Term.
      Unless extended or earlier terminated by mutual agreement in writing of
      the parties, the term of this Agreement shall commence August 21,2009 and
      terminate on the earliest to occur of: (i) ten (10) calendar days after
      written notice given to the Company by Placement Agent of a potential
      Investor purchasing at least 50,000,000 Shares that will close on the
      purchase of Shares within five (5) calendar days of the date of such
      written notice;(ii) 180 calendar days from August 21,2009; (iii) the date
      of closing and funding by any Investor of a Subscription Agreement for a
      minimum of 50,000,000 Shares(the "Term");or (iv) ten(10) calendar days
      after written notice given to Placement Agent by the Company that the
      Offering will be closed at the sole discretion of the Company. Upon any
      termination or expiration of this Agreement, neither the Company nor a
      potential Placement Investor shall have any obligation or liability to any
      other party under this Agreement. For a period of 180 calendar days from
      August 2l ,2009 ("Period"),Placement Agents hall have the non-exclusive
      right on behalf of the Company to solicit prospective Investors who are
      QIBs and/or accredited investors regarding the possible sale to such
      Investors of Shares, During the Period, Placement Agent shall not have the
      right to conduct any other discussions on behalf of the Company regarding
      any matter other than the sale of the Shares to the prospective Investors.
      For purposes of clarification, the Company during the Period shall deal on
      a non-exclusive basis with Placement Agent concerning the sale of the
      Shares.

            


    

    


    For a
period up to two years from the termination of this Agreement and if Placement
Agent enters into a selling group of any subsequent securities offerings of the
Company, then Placement Agent shall receive additional financing fees
("Additional Fees")if the Company sells securities to GT Protected Investors.
Prior to the termination date, Placement Agent will furnish the Company with a
written list of GT protected Investors. The Additional Fees will be equal to any
underwriting or placement fees that are listed in any future offering circular
or prospectus.

    


    
      	
              4)

            	
              Company
      Information. The Company will furnish Placement Agent such
      information concerning the Company as Placement Agent reasonably
      determines to be appropriate with respect to the Offering ("Information").
      The Company shall afford Placement Agent and its counsel and
      representatives full and complete access to its books and records and will
      use commercially reasonable efforts to afford placement Agent with full
      and complete cooperation of management to gather the Information on a
      reasonable basis. The Company recognizes and confirms that Placement Agent
      (a)will use and rely on the Information in performing the services
      contemplated by this Agreement, without independently verifying the
      accuracy and completeness of the same,(b) does not assume responsibility
      for the accuracy or completeness of the Information, and (c) will not make
      an appraisal of any assets or liability of the
  Company.

            


    

    


    The
Company hereby represents to Placement Agent that all solicitation materials
prepared by the Company and used in connection with the Offering, including,
without limitation, the Confidential Private Placement Memorandum (the "Offering
Materials") will not, as of the date of any offer or sale in connection with the
Offering, contain any untrue statement of a material fact or omit a material
fact necessary to make the statements contained therein, not misleading, in
light of the circumstances under which they were made. If at any time an event
occurs as a result of which the Offering Materials, as then amended or
supplemented, would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made when such Offering Materials are
delivered to a prospective purchaser pursuant hereto, not misleading, the
Company will promptly notify Placement Agent to suspend solicitation of
prospective purchasers in connection with the Offering; and if the Company
decides to amend or supplement the Offering Materials, it will promptly advise
Placement Agent by telephone (with confirmation in writing) and will promptly
prepare an amendment or supplement that will correct such statement or
omission.

    


    Placement
Agent will not violate, or cause the Company to violate, any applicable federal
and state securities laws in connection with the Offering,

     

    
      
        
        

      

      
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              5)

            	
              Confidentiality.
      In connection with this engagement, it is contemplated that Placement
      Agent will receive from the Company certain information (including refrain
      business planning, investment, product, marketing, technical, financial,
      and other information and materials) the Company considers confidential.
      Placement Agent shall use this confidential information solely for the
      purpose of providing services to the Company and will not disclose to any
      party (other than Placement Agent's officers, directors, employees,
      affiliates, and counsel who have a need to know such information, herein
      (“Representatives")any such confidential information, except with the
      prior written approval of the Company; provided, however that the
      foregoing restrictions shall not apply to any information that: (a) is
      included in the Offering Materials and disclosed pursuant to the
      distribution of the Offering materials as permitted by the Company, (b)
      the Company consents to having disclosed in connection with the offering,
      (c) is publicly available when provided or thereafter becomes publicly
      available other than through disclosure by Placement Agent or its
      Representatives, or (d) is required to be disclosed by Placement Agent by
      judicial or administrative process in connection with any action, suit,
      proceeding, or investigation; and provided, further, however, that
      Placement Agent shall give the Company notice of any such requirement
      immediately upon the becoming aware of same and shall not disclose such
      information except only to the extent required after the maximum time
      permitted. Information shall be deemed "publicly available" if it becomes
      a matter of public knowledge or is contained in materials available to the
      public or is obtained by Placement Agent from any source other than the
      Company or its representatives, provided that such source was not to
      Placement Agent's actual knowledge subject to a confidentiality agreement
      with the Company. Placement Agent will take reasonable steps to assure
      that the Offering Materials are not distributed to any persons not
      permitted to receive them pursuant to the terms hereof. Placement Agent
      will not provide any confidential information to prospective Investors or
      any other third party without the express written consent of the Company
      unless the prospective Investor has executed a confidentiality agreement
      acceptable to the Company.

            


    

    


    
      	
              6)

            	
              Representations
      and Warranties of Placement Agent. The Placement Agent represents
      and warrants to the Company as follows: (a) it is a licensed broker-dealer
      registered with the SEC, FINRA and State securities laws and regulations
      and is licensed under FINRA and State securities laws regulations to sell
      Securities to QIBS and accredited investors; (b) there are no judgments,
      orders, decrees, or like actions, or any proceedings pending, before the
      SEC, FINRA, any State, or any court or arbitration panel that prohibit or
      effect it from carrying out its obligations under this Agreement; and (c)
      this Agreement has been duly authorized and approved by it, does not
      contravene its organizational documents or any agreement or order to which
      it is a party, and is a legal and valid obligation binding on
      it.

            


    

     

    
      	
              7)

            	
              Indemnification.
      The Company acknowledges that Placement Agent will be acting on behalf of
      the Company and will require indemnification by the Company. The Company
      further acknowledges that Placement Agent's indemnification provisions
      attached hereto as Exhibit A are incorporated by reference herein or are
      made a part hereof for all purposes as though set forth entirely
      herein.

            


    

     

    
      	
              8)

            	
              Miscellaneous.
      The Offering will be completed in accordance with Rule 506 under
      Regulation D under the Securities Act and all applicable state or other
      jurisdictional "under securities laws (i.e. "blue sky" laws). All
      prospective Investors will be persons who qualify as QIBs and/or
      accredited investors under all applicable federal and state securities
      laws and who execute a Subscription
Agreement.

            


    

    


    The
Company shall have the right to identify Investors with which it has
affiliations who would be suitable QIBs and/or accredited investors for the
Offering ("Company-Introduced Investors"). In the event that the Company decides
that these Investors are suitable for the Offering and these Investors purchase
Securities in the Offering, no fees shall be due to Placement Agent respecting
Securities purchased by Company-Introduced Investors pursuant to Section 2
above.

    


    The
Company agrees that, following the closing of the Offering, Placement Agent and
shall have the right to place advertisements in financial and other newspapers
and journals at their own expense describing its services to the Company
hereunder, provided that Placement Agent will submit a copy of any such
advertisement to the Company for its approval, which approval shall not be
unreasonably withheld or delayed, and that such action is not in violation of
Rule 506 under Regulation D or other federal and state securities
laws.

     

    
      
        
        

      

      
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    The
parties agree that their relationship under this Agreement is an advisory
relationship only, and nothing herein shall cause the Placement Agent to be
partners, agents or fiduciaries of, or joint venture partners with, the Company
or with each other.

    


    This
Agreement may not be amended or modified except in writing and shall be governed
by, and construed in accordance with the laws of the State of New
York.

    


    If this
Agreement reflects our mutual understanding, please execute two copies in the
space indicated below and return one to us.

    


    Very
truly yours,

    GROWTHINK
SECURITIES, INC.

    


    
      
        
          	
                  /s/
      James Turo

                
	
                  Name:
      James Turo

                
	
                  Title:
      Principal

                


        

      

    

     

    BLACKHAWK
CAPITAL GROUP BDC. INC.

    


    
      
        
          	
                  /s/
      Craig A. Zabala

                


        

      

    

    
      


      Dr. Craig
A. Zabala

    

    Chairman
of the Board, President & Chief Executive Officer

     

    
      
        
        

      

      
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    Exhibit
A

    


    Indemnification

    


    The
Company agrees to indemnify and hold harmless the Placement Agent together with
its affiliates, directors, officers, agents, and employees (Placement Agent each
such entity or person, an "indemnified Person"), from and against any and all
losses, claims, damages, judgments, and liabilities, expenses, or costs and all
actions in respect thereof and any legal or other expenses in giving testimony
or furnishing documents in response to a subpoena or otherwise), including the
cost of investigating, preparing for, or defending any such action or claim,
whether or not in connection with litigation in which an Indemnified Person is a
party, as and when incurred, directly or indirectly caused by, relating to,
based upon, or arising out of Placement Agent's performance of its engagement by
the Company under the letter agreement dated as of August 21,2009, as it may be
amended from time to time (the "Agreement"),or otherwise arising out of or in
connection with advice or services provided or to be provided by Indemnified
Persons pursuant to the Agreement, the transactions contemplated thereby, or any
Indemnified Person's actions or inactions in connection with any such advice,
services, or transactions, including any Indemnified Person's sole or
contributory negligence, if such activities were performed (i) in good faith and
(ii) in such manner reasonably believed by such Indemnified Person to be within
the scope of the authority conferred by the Agreement or by law and to be on
behalf of the Company or in furtherance of the performance of Placement Agent's
services under the Agreement; provided, however, such indemnification agreement
shall not apply to any such loss, claim, damage, liability, or cost incurred by
any Indemnified Person to the extent it is found in a final judgment by a court
of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct or bad
faith of such Indemnified Person. The Company also agrees that no Indemnified
Person shall have any liability (whether direct or indirect, in contractor tort
or otherwise) to the Company for or in connection with the any advice or
services provided by any Indemnified Persons in connection with the Agreement,
the transactions contemplated by the Agreement, or any Indemnified Persons'
actions or inactions in connection with any such advice, services, or
transactions except for any such liability for losses, claims, damages,
liabilities, or costs found in a final judgment by a court of competent
jurisdiction(not subject to further appeal) to have resulted primarily and
directly from such Indemnified Person's gross negligence or willful misconduct
or bad faith in connection with such advice, actions, inactions, or
services.

    


    These
Indemnification Provisions shall be in addition to any liability that the
Company may otherwise have to any Indemnified Person and shall extend to the
following: Placement Agent, its affiliated entities, directors, officers,
employees, agents, legal counsel and controlling persons of Placement Agent
within the meaning of the federal securities laws, and the respective
successors, assigns, heirs, beneficiaries, and legal representatives of each of
the foregoing indemnified persons or entities. All references to Placement
Agent, or Indemnified Persons, in these Indemnification Provisions shall be
understood to include any and all of the foregoing indemnified persons or
entities.

    


    If any
action, proceeding, or investigation is commenced, as to which an Indemnified
Person proposes to demand
such indemnification, it will notify the Company with reasonable promptness;
provided, however, that any failure by an Indemnified Person to notify the
Company will not relieve the Company from its obligations hereunder except if
and only to the extent that the Company's defense of such action, proceeding or
investigation is actually prejudiced by the Indemnified Person's failure so to
notify the Company. Placement Agent will have the right to retain counsel of its
own choice to represent them; however, such firm shall be acceptable to the
Company, which acceptance shall not be unreasonably withheld, and unless the
Company assumes Placement Agent's defense as provided below, the Company will
pay the reasonable fees and expenses of such counsel, and such counsel shall to
the fullest extent consistent with its professional responsibilities cooperate
with the Company and any counsel designated by it. The Company will be entitled
to participate at its own expense in the defense, or if it so elects, to assume
and control the defense of any action, proceeding, or investigation, but if the
Company elects to assume the defense, such defense shall be conducted by counsel
reasonably acceptable to Placement Agent. Any Indemnified Person may retain
additional counsel of its own choice to represent it but shall bear the fees and
expenses of such counsel unless the Company shall have specifically authorized
the retaining of such counsel. The Company will not be liable for any settlement
of any claim against an Indemnified Person made without its written
consent.

     

    
      
        
        

      

      
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    In order
to provide for just and equitable contribution, if a claim for indemnification
pursuant to these Indemnification Provisions is made but it is found in a final
judgment by a court of competent jurisdiction (not subject to further appeal)
that such indemnification may not be enforced in such case, even though the
express provisions hereof provide for indemnification in such case, then the
Company, on the one hand, and any Indemnified Person, on the other hand, shall
contribute to the losses, claims, damages, liabilities, or costs to which the
Indemnified Persons may be subject in accordance with the relative benefits
received by the Company, on the one hand, and Placement Agent, on the other
hand, and also the relative fault of the Company, on the one hand, and Placement
Agent, on the other hand, in connection with the statements, acts or omissions
that resulted in such losses, claims, damages, liabilities, or costs, and the
relevant equitable considerations shall also be considered. No person found
liable for a fraudulent misrepresentation shall be entitled to contribution from
any person who is not also found liable for such misrepresentation.
Notwithstanding the foregoing, Placement Agent shall not be obligated to
contribute any amount hereunder that exceeds the amount of fees received by
Placement Agent pursuant to the Agreement.

    


    The
liability of the Company under the indemnification provisions set forth in this
Exhibit A shall be
limited to $25.000.

    


    Neither
termination nor completion of the engagement of Placement Agent or any
Indemnified Person under the Agreement shall affect the provisions of these
Indemnification Provisions, which shall then remain operative and in full force
and effect for one year.

    


    If any
provision jurisdiction or other authority contained in this Exhibit A is held by a court
of competent to be
invalid, void, unenforceable, of the provisions or against its regulatory
policy, the remainder contained in this Exhibit A shall remain in full
force and effect and shall in no way be affected, impaired, or invalidated.
These Indemnification may not be amended Provisions or modified in any way,
except by subsequent executed agreement in writing.

     

    
      
        
        

      

      
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