Common use of Agreement to Act as Placement Agent; Delivery and Payment Clause in Contracts

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Placement Agents agree to act as the Company’s exclusive placement agents in connection with the issuance and sale, on a reasonable-efforts basis, by the Company of the Shares to the Investors. The Placement Agents shall have no authority to bind the Company. The Company acknowledges and agrees that the Placement Agents’ engagement hereunder is not an agreement by the Placement Agents or any of their affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) the Placement Agents by wire transfer of immediately available funds six percent (6%) of the proceeds received by the Company from the sale of the Shares (the “Transaction Fee”). CIBC World Markets Corp. shall be entitled to retain sixty-seven percent (67%) of the Transaction Fee, and shall pay Leerink Swan & Co. shall be entitled to retain sixty thirty-three percent (33%) of the Transaction Fee in accordance with customary syndicate settlement procedures. (b) Payment of the purchase price for, and delivery of the Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxx Xxxxxx LLP, located at 0000 Xx Xxxxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000-0000, at 9:00 a.m., California time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act after the determination of the public offering price of the Shares (such time and date of payment and delivery being herein called the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of the purchase price for the Shares shall be made to or upon the order of the Company by wire transfer in Federal (same day) funds to the Company, upon delivery the Shares, through the facilities of The Depository Trust Company, to such persons, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents may request at least one business day before the Closing Date. Payment of the purchase price for the Shares shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents otherwise direct. (d) The purchases of the Shares by the Investors shall be evidenced by the execution of a purchase agreement substantially in the form attached hereto as Exhibit A. (e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp., solicit or accept offers to purchase shares of its Common Stock or other equity linked securities (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agents.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Placement Agents agree to act as the Company’s exclusive placement agents in connection with the issuance and sale, on a reasonable-reasonable efforts basis, by the Company of the Shares to the Investors. The Placement Agents shall have no authority to bind the Company. The Company acknowledges and agrees that the Placement Agents’ engagement hereunder is not an agreement by the Placement Agents or any of their affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) the Placement Agents by wire transfer of immediately available funds six percent (6%) 6.5% of the proceeds received by the Company from the sale of the Shares (the “Transaction Fee”). CIBC World Markets Corp. shall be entitled to retain sixty-seven percent (67%) of the Transaction Fee, and shall pay Leerink Swan & Co. shall be entitled to retain sixty thirty-three percent (33%) of the Transaction Fee in accordance with customary syndicate settlement proceduresShares. (b) Payment of the purchase price for, and delivery of the Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxx Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, located at 0000 Xx Xxxxx Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000-0000, at 9:00 a.m., California New York time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the determination of the public offering sales price of the Shares (such time and date of payment and delivery being herein called the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of the purchase price for the Shares shall be made by the Investors directly to or upon the order of the Company by wire transfer in Federal (same day) immediately available funds to the Company, upon delivery of the Shares, Shares through the facilities of The Depository Trust Company, to such personsthe Investors, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents Investors may request at least one business day before the Closing Date. Payment of the purchase price for the Shares shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents otherwise direct. (d) The several purchases of the Shares by the Investors shall be evidenced by the execution of a one or more purchase agreement agreements each substantially in the form attached hereto as Exhibit A.A (the “Purchase Agreement”). (e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp.the Placement Agents, solicit or accept offers to purchase shares of its Common Stock or other equity linked securities Shares (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agents.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Placement Agents agree to act as the Company’s exclusive placement agents in connection with the issuance and sale, on a reasonable-reasonable efforts basis, by the Company of the Shares to the Investors. The Placement Agents shall have no authority to bind the Company. The Company acknowledges and agrees that the Placement Agents’ engagement hereunder is not an agreement by the Placement Agents or any of their affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) the Placement Agents by wire transfer of immediately available funds six percent (6%) % of the proceeds received by the Company from the sale of the Shares (allocated among the “Transaction Fee”). Placement Agents 58% to CIBC World Markets Corp. shall be entitled Corp., 34% to retain sixty-seven percent (67%) of the Transaction FeePunk, Xxxxxx & Company, L.P. and shall pay Leerink Swan & Co. shall be entitled 8% to retain sixty thirty-three percent (33%) of the Transaction Fee in accordance with customary syndicate settlement proceduresEnable Capital, LLC). (b) Payment of the purchase price for, and delivery of the Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxx Xxxxxx Godward LLP, located at 0000 Xx Xxxxx Xxxxxxx XxxxxXxxxxx, 0xx XxxxxXxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, XX 00000-0000, at 9:00 a.m., California time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the determination of the public offering price of the Shares (such time and date of payment and delivery being herein called the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of the purchase price for the Shares shall be made to or upon the order of the Company by wire transfer in Federal (same day) funds to the Company, upon delivery the Shares, through the facilities of The Depository Trust Company, to such persons, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents may request at least one two business day days before the Closing Date. Payment of the purchase price for the Shares shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents otherwise direct. (d) The purchases of the Shares by the Investors shall may be evidenced by the execution of a purchase agreement substantially in the form attached hereto as Exhibit A. (e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp.the Placement Agents, solicit or accept offers to purchase shares of its Common Stock or other equity linked securities (other than pursuant to the exercise of options under existing employee benefit plans, purchases under the Company’s employee stock purchase plan or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agents.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement: (a) The Placement Agents agree Agent agrees to act as the Company’s 's exclusive placement agents agent in connection with the issuance and sale, on a reasonable-commercially reasonable efforts basis, by the Company of the Shares Securities to the Investors. The Upon the occurrence of the Closing (as hereinafter defined), the Company shall pay to the Placement Agents shall have no authority to bind Agent seven percent (7.0%) of the Companygross proceeds received by the Company from the sale of the Securities. The Company acknowledges and agrees that the Placement Agents’ Agent's engagement hereunder is not an agreement by the Placement Agents Agent or any of their its affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation Under no circumstances will the Placement Agent be obligated to purchase any Securities for their services hereunderits own account and, in soliciting purchases of Securities, the Company agrees to pay on Placement Agent shall act solely as the Closing Date (Company's agent and not as defined below) principal. Notwithstanding the foregoing, it is understood and agreed that the Placement Agents by wire transfer of immediately available funds six percent Agent (6%or its affiliates) of may, solely at its discretion and without any obligation to do so, purchase Securities as principal. The Placement Agent shall have no authority to bind the proceeds received by the Company from the sale of the Shares (the “Transaction Fee”). CIBC World Markets Corp. shall be entitled to retain sixty-seven percent (67%) of the Transaction Fee, and shall pay Leerink Swan & Co. shall be entitled to retain sixty thirty-three percent (33%) of the Transaction Fee in accordance with customary syndicate settlement proceduresCompany. (b) Payment of the purchase price for, and delivery of of, the Shares Securities shall be made at a closing (the “Closing”"CLOSING") at the offices of Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxx, LLP, counsel for the Company, located at 0000 Xx Xxxxx Xxxxxxx 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000-Xxxxx 0000, Xxxxx Xxxx, Xxxxxxxxxx at 9:00 7:00 a.m., California local time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Exchange Act Act) after the determination of the public offering price of the Shares Securities (such time and date of payment and delivery being herein called the “Closing Date”"CLOSING DATE"). All such actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of Prior to the Closing, the Placement Agent shall cause each Investor to wire directly to an escrow account designated by the Placement Agent an amount equal to the aggregate purchase price for the Shares shall be made number of Securities such Investor has agreed to or upon the order of the Company by wire transfer in Federal (same day) funds to the Company, upon delivery the Shares, through the facilities of The Depository Trust Company, to such persons, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents may request at least one business day before the Closing Date. Payment of the purchase price for the Shares shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents otherwise directpurchase. (d) On the Closing Date, the Placement Agent shall cause the aggregate purchase price for the Securities to be wired from the Investors or the escrow account referred to in Section 1(c) above to an account designated by the Company and the Company shall deliver, or cause the transfer agent for the Securities to deliver, to each Investor the number of Securities set forth on the signature page to such Investor's Subscription Agreement, which delivery shall be made, with respect to an Investor, in accordance with the procedures set forth in such Investor's executed Subscription Agreement. (e) The purchases of the Shares Securities by each of the Investors shall be evidenced by the execution of a purchase agreement Subscription Agreement substantially in the form attached hereto as Exhibit EXHIBIT A. (ef) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp.Xxxxx Xxxxxxx & Co., solicit or accept offers to purchase shares of its AR-CombiMatrix Common Stock or other equity or equity-linked securities of the Company (other than pursuant to the exercise of options or warrants to purchase shares of AR-CombiMatrix Common Stock that are outstanding at the date hereof) otherwise than through the Placement AgentsAgent.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Placement Agents agree Agent agrees to act as the Company’s exclusive placement agents Placement Agent in connection with the issuance and sale, on a reasonable-reasonable efforts basis, by the Company of the Shares Units to the Investors. The Placement Agents shall have no authority to bind the Company. The Company acknowledges and agrees that the Placement Agents’ Agent’s engagement hereunder is not an agreement by the Placement Agents Agent or any of their affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) the Placement Agents Agent by wire transfer of immediately available funds six five percent (65%) of the gross proceeds received by the Company from the sale of the Shares (the “Transaction Fee”). CIBC World Markets Corp. shall be entitled to retain sixty-seven percent (67%) of the Transaction Fee, and shall pay Leerink Swan & Co. shall be entitled to retain sixty thirty-three percent (33%) of the Transaction Fee in accordance with customary syndicate settlement proceduresUnits. (b) Payment of the purchase price for, and delivery of the Shares Units shall be made at a closing (the “Closing”) at the offices of Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxxx LLP, located at 0000 Xx Xxxxx Xxxxxxx Xxxxx000 Xxxx Xxxx Xxxx, 0xx XxxxxXxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx, XX 00000-0000, 0000 at 9:00 a.m., California time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the determination of the public offering price of the Shares Units (such time and date of payment and delivery being herein called the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of the purchase price for the Shares Units shall be made to or upon the order of the Company by wire transfer in Federal (same day) funds to the Company, upon delivery the Shares, through the facilities of The Depository Trust CompanyCompany and the issuance of certificates for the Warrants, to such persons, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents Agent may request at least one two business day days before the Closing Date. Payment of the purchase price for the Shares Units shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents Agent shall otherwise direct. (d) The purchases of the Shares Units by the Investors shall may be evidenced by the execution of a purchase agreement substantially in the form attached hereto as Exhibit A. (e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp.the Placement Agent, solicit or accept offers to purchase shares of its Common Stock or other equity linked securities (other than pursuant to the exercise of options under existing employee benefit plans, purchases under the Company’s employee stock purchase plan or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement AgentsAgent.

Agreement to Act as Placement Agent; Delivery and Payment. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this placement agency agreement (this “Agreement:”): (a) The Placement Agents agree Agent agrees to act as the Company’s exclusive placement agents agent in connection with the issuance and sale, on a reasonable-best efforts basis, by the Company of the Shares to the Investors. The Placement Agents shall have no authority to bind the Company. The Company acknowledges and agrees that the Placement Agents’ Agent’s engagement hereunder is not an agreement by the Placement Agents Agent or any of their its affiliates to underwrite or purchase any securities or otherwise provide any financing. As compensation for their services hereunder, the Company agrees to pay on the Closing Date (as defined below) to the Placement Agents Agent by wire transfer of immediately available funds six five percent (65.0%) of the proceeds received by the Company from the sale of the Shares; provided, however, with respect to proceeds received by the Company from the sale of Shares to CapGen Capital Group III LP and/or its affiliates, the Company agrees to pay on the Closing Date to the Placement Agent by wire transfer of immediately available funds three-quarters of one percent (0.75%) of the proceeds received by the Company from the sale of the Shares (the “Transaction Fee”)to such parties. CIBC World Markets Corp. No fee shall be entitled payable to retain sixty-seven percent (67%) Placement Agent in respect of the Transaction Fee, and shall pay Leerink Swan & Co. shall be entitled to retain sixty thirty-three percent (33%) sale of the Transaction Fee in accordance with customary syndicate settlement proceduresShares to any officers or directors of the Company. (b) Payment of the purchase price for, and delivery Delivery of the Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, located at 0000 Xx Xxxxx Xxxxxxx Xxxxx12:00 p.m., 0xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000-0000, at 9:00 a.m., California timeEastern Time, on the Closing Date to take place on the third or fourth business day (as permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the “1934 Act”)), as mutually agreed by the parties, after the determination of the public offering sales price of the Shares (such time and date of payment and delivery being herein called the “Closing Date”). All actions taken at the Closing shall be deemed to have occurred simultaneously. (c) Payment of the purchase price for the Shares shall be made by the Investors directly to or upon the order of the Company by wire transfer in Federal (same day) immediately available funds to the Company, upon delivery of the Shares, Shares through the facilities of The Depository Trust Company, to such personsthe Investors, and shall be registered in such name or names and shall be in such denominations, as the Placement Agents Investors may request at least one business day before the Closing Date. Payment of the purchase price for the Shares shall be made on the Closing Date by the Investors directly to the Company or as the Placement Agents otherwise direct. (d) The several purchases of the Shares by the Investors shall be evidenced by the execution of a one or more purchase agreement agreements each substantially in the form attached hereto as Exhibit A.A (each, a “Purchase Agreement” and, collectively, the “Purchase Agreements”). (e) Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of CIBC World Markets Corp.the Placement Agent, solicit or accept offers to purchase shares of its Common Stock or other equity linked securities Shares (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement AgentsAgent. (a) The Company represents and warrants to the Placement Agent as of the date hereof, and as of the Closing Date, as follows: (i) The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “1933 Act”) with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-185660), in respect of the Company’s Common Stock (including the Shares) not earlier than three years prior to the date hereof; such registration statement became effective on February 14, 2013; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Base Prospectus”; the various parts of such registration statement, including all exhibits thereto and any prospectus supplement relating to the Shares that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement pursuant to the 1933 Act, each as amended at the time such part of the registration statement became effective pursuant to the 1933 Act (the “Effective Date”), are hereinafter collectively called the “Registration Statement”; the preliminary prospectus supplement subject to completion dated November 5, 2013 that was used prior to the execution and delivery of this Agreement and filed with the Commission pursuant to Rule 424(b) under the 1933 Act relating to the Shares is hereinafter called the “Preliminary Prospectus Supplement” the prospectus supplement specifically relating to the Shares prepared and filed with the Commission pursuant to Rule 424(b) under the 1933 Act is hereinafter called the “Prospectus Supplement”; the Base Prospectus, as amended and supplemented by the Preliminary Prospectus Supplement, is hereinafter called the “Preliminary Prospectus”; the Base Prospectus, as amended and supplemented by the Prospectus Supplement, is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, the Preliminary Prospectus Supplement, the Prospectus Supplement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act; any reference to any amendment or supplement to the Base Prospectus, the Preliminary Prospectus Supplement, the Prospectus Supplement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”). (ii) On the Effective Date, the Registration Statement complied, and on the date of the Preliminary Prospectus and the Prospectus, the date any post-effective amendment to the Registration Statement becomes effective, the date any supplement or amendment to the Preliminary Prospectus or the Prospectus is filed with the Commission and the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus (and any amendment thereof or supplement thereto) will comply, in all material respects, with the requirements of the 1933 Act and the published rules and regulations thereunder (the “Rules”) adopted by the Commission. The Registration Statement did not, as of the Effective Date, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the Effective Date and the other dates referred to in the first sentence of this paragraph 2(a)(ii) above, neither the Registration Statement nor any amendment thereof or supplement thereto, contained or will contain any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with the information relating to the Placement Agent furnished to the Company in writing by the Placement Agent expressly for use in the Registration Statement, the Preliminary Prospectus, the Prospectus and any post-effective amendment to the Registration Statement, which, for purposes of this Agreement, the Company and the Placement Agent hereby acknowledge and agree that such information is limited to the fourteenth paragraph under the caption “Plan of Distribution” in the Preliminary Prospectus and the Prospectus (the “Xxxxx Information”). (iii) No order preventing or suspending the use of the Base Prospectus, the Preliminary Prospectus Supplement, the Prospectus Supplement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Preliminary Prospectus and the Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the Rules and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to the Xxxxx Information. (iv) For the purposes of this Agreement, the “Applicable Time” means, with respect to any Shares, 8:00 a.m. (Eastern Time) on November 6, 2013. The Preliminary Prospectus, as of the Applicable Time when taken together with the price to the public and number of Shares to be offered set forth on the cover of the Prospectus (which is hereinafter referred to as the “General Disclosure Package”) did not and will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each applicable Issuer Free Writing Prospectus will not conflict with the information contained in the Registration Statement, the Prospectus Supplement, the Preliminary Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of such Applicable Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.