Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence. (b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith. (c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty. (d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company. (e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement. (f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the offering and sale by the Company of the Shares pursuant to the Company's registration statement on Form S-3 (File No. 333-183286), and the issuance and sale by the Company of the Securities Warrants pursuant to the Investors exemption provided in a proposed takedown Section 4(a)(2) under the Registration Statement Securities Act (as defined in Section 2(a)(1below) hereof)and Rule 506(b) promulgated thereunder, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Shares and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at a one closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which the Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid forAs compensation for services rendered, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Company shall pay to the Placement Agent will disburse the Escrow Funds fees and expenses set forth below:
(i) A cash fee equal to 7.0% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Closing”). For the avoidance of doubt, the sale of Securities does not include the issuance of shares of Common Stock upon exercise of any Warrant and the gross proceeds received from the sale of the Securities does not include the consideration received by the Company from time to time in connection with the exercise of any Warrant.
(ii) Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company also agrees to reimburse the Placement Agent’s reasonable out-of-pocket expenses (with supporting invoices/receipts) up to $75,000, $25,000 of which has been paid to the Placement Agent upon the execution of the Engagement Agreement dated as of April 16, 2015, by and between the Company and the Placement Agent as provided (the “Engagement Letter”).
(b) The term of this Agreement will be until the completion or abandonment of the Offering (the “Exclusive Term”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the Escrow Agreement and the Company shall deliver indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery of the Warrants Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be made by mail to the Investors to the addresses set forth on the applicable Subscription reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors Company’s registration statement on Form S-1, as amended (File No. 333-274331) (including the registration statement prepared and filed by the Company on October 16, 2023 in a proposed takedown under accordance with Rule 462(c) and any registration statement prepared and filed by the Company in accordance with Rule 462(b) pursuant to the Securities Act) (the “Registration Statement (as defined in Section 2(a)(1) hereofStatement”), with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Purchasers. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of their “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to the Placement Agent an amount equal any prospective offer to 7% of the gross proceeds received by the Company from the sale of purchase the Securities (and the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities Series B Preferred Stock and the Preferred Warrants shall be made at a the closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which the Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the The Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
occur via “Delivery Versus Payment” (e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow AgentDVP”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”)i.e., pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse Company shall issue the Escrow Funds Series B Preferred Stock and the Preferred Warrants directly to the Company and account designated by the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investorsand, with the delivery upon receipt of the Shares to be madesuch securities, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request cause the Series B Preferred Stock and the Preferred Warrants to be electronically delivered to the applicable Purchaser and payment shall be made by written notice the Placement Agent (or their clearing firm) by wire transfer to the Company, and delivery of the Series B Preferred Stock and the Preferred Warrants shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the account of the applicable Purchaser as set forth in the Purchase Agreement. As compensation for services rendered, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i) a cash fee equal to eight percent (8.0%) of the gross proceeds received by the Company from the sale of the Series B Preferred Stock and the Preferred Warrants at the Closing; provided that the cash fee shall be five percent (5.0%) of the gross proceeds received by the Company for the investors set forth on Exhibit A hereto;
(ii) for a period of twelve (12) months from the initial Closing Date, the Company grants the Placement Agent the right of first refusal to act as sole managing underwriter and sole book runner, sole placement agent, or sole sales agent, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt and loans against tax credits) offerings for which the Company retains the service of an underwriter, agent, advisor, finder or other person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary of the Company (a “Subsequent Offering”). The Company shall not offer to retain any entity or person in connection with any such Subsequent Offering on terms more favorable than terms on which it offers to retain the Placement Agent. Such offer shall be made in writing in order to be effective. The Placement Agent shall notify the Company within ten (10) business days of its receipt of the written offer contemplated above as to whether or not it agrees to accept such retention. If the Placement Agent should decline such retention, the Company shall have no further obligations to the Placement Agent with respect to the offering for which it has offered to retain the Placement Agent, except as otherwise provided for herein; and
(iii) reimbursement of the Placement Agent’s accountable expenses, including the Placement Agent’s legal counsel’s legal fees, up to $100,000. The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(b) The Placement Agent’s engagement hereunder shall become effective on the date hereof and shall continue until the later of (i) the final Closing Date of the Offering and (ii) December 31, 2023 (the “Termination Date”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under the FINRA Rules, will survive any expiration or termination of this Agreement. All such fees and reimbursements due shall be paid to the Placement Agent on or before the Termination Date (in the event such fees and reimbursements are earned or owed as of the Termination Date) or upon the closing of the Offering or any applicable portion thereof (in the event such fees are due pursuant to the terms of Section 1 hereof).
(c) Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Samples: Placement Agency Agreement (Wisa Technologies, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Shares and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at a one closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which the Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid forAs compensation for services rendered, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds Company shall pay to the Company and the Placement Agent as provided in the Escrow Agreement fees and expenses set forth below:
(i) A cash fee equal to 6% of the gross proceeds received by the Company shall deliver or cause to be delivered from the sale of the Securities to at the InvestorsClosing, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses except as set forth on the applicable Subscription AgreementSchedule A hereto.
(fii) The Securities Company also agrees to reimburse Placement Agent’s expenses (with supporting invoices/receipts) up to a maximum of US$125,000, which shall be registered payable immediately upon (but only in such names and in such denominations as the event of) the Closing of the Offering. In the event that the Closing of the Offering does not occur, the Company agreed to reimburse the Placement Agent shall request by Agent’s expenses (with supporting invoices/receipts) up to a maximum of US$62,500.
(b) The term of the Placement Agent's exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Samples: Placement Agency Agreement (Vision Marine Technologies Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (dc) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentencetwo sentences.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase Securities (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock Ordinary Shares that are outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter Proskauer Rose LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx XxxEleven Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, on or before July 30, 2014 or at such time on such other date as soon as practicable after may be agreed upon in writing by the determination of Company and the public offering price of the Securities, but not later than on October 25, 2013 Placement Agent (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer with which it has acceptedentered into a Subscription Agreement, the Company shall indemnify and hold the Placement Agent harmless from and against any loss, claim claim, damage or damage liability incurred by the Placement Agent arising from or as a result of such default by the Company.
(ed) Concurrently with the execution The Shares and delivery of this Agreement, the Company, the Placement Agent Warrants are immediately separable and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below)issued separately. The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company Shares shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possibledelivered, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants shall be delivered in physical, certificated form to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities such persons, and shall be registered in such name or names and shall be in such denominations denominations, as the Placement Agent shall may request by written notice to the CompanyCompany at least one business day before the Closing Date.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxx Capital Partners, LLC shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts “best efforts” basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76.5% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a use commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities of the Company (other than pursuant to the grant of options or restricted stock awards under the Company’s equity compensation plans or the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxxxxx Xxxxxxx Procter LLPP.C., counsel for the Placement Agent, located at The New York Times Building00 Xxxxxxxxxx Xxxxxx, 000 Xxxxxx XxxRoseland, Xxx Xxxx, XX 00000 NJ 07068 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25May 7, 2013 2010 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(ed) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and (i) the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's ’s DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement and (ii) the Investors will wire the purchase price for their respective Securities to the Company pursuant to the terms of the Subscription Agreements and the Company will wire the amounts owed to the Placement Agent as provided in this Agreement.
(fe) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Oxygen Biotherapeutics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxx Capital Partners, LLC shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown or takedowns under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76.5% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”) plus reimbursable costs and expenses of the Placement Agent pursuant to Section 4. The Placement Fee shall be payable to the Placement Agent at Closing, based upon the sale of the Shares, as provided in the Subscription Agreement (defined below). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its their respective affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its their respective affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities of the Company (other than pursuant to the grant of options or restricted stock awards under the Company's equity compensation plans or the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter Xxxxxxxxx Xxxxxxx, LLP, counsel for 00 X. Xxxxxx Drive, Suite 3100, Chicago, Illinois 60601, or at such other location mutually designated by the Placement AgentCompany and the Purchasers Identified in the Subscription Agreement, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local timeEastern Standard Time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25April 12, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and (i) the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement, and (ii) the Investors will wire the purchase price for their respective Securities to the Company pursuant to the terms of the Subscription Agreements and the Company will wire the amounts owed to the Placement Agent as provided in this Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to in the Investors in a proposed takedown under the from a shelf registration statement on Form S-3 (Registration Statement No. 333-145742) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the an “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76.5% of the gross proceeds received by the Company from the sale of the Securities (Securities, provided, however the “Placement Fee”). The Company shall only pay an amount equal to 3.25% of the gross proceeds received by the Company from the sale of the Securities shall be made pursuant Shares to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent RHP Master Fund or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) . This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis to solicit offers to purchase the Securities and to procure performance by the Investors in the Securities; provided, however that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of .
(ib) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent The term of the Placement Agent’s exclusive engagement will be six months; however, solicit or accept offers to purchase Securities (other than pursuant either party may terminate the engagement at any time upon 10 days written notice to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through other party. Upon termination, the Placement Agent in accordance herewith.
(cwill be entitled to collect all fees earned and, to the extent provided herein, to be reimbursed for expenses incurred through the date of termination. The parties hereby acknowledge that Section 3(b) The of that certain engagement letter dated August 13, 2007 between the Company acknowledges and agrees Xxxx Capital has been deleted, and that the Placement Agent will not be entitled to collect any fees pursuant to such section in the event the Placement Agent’s engagement is terminated prior to consummation of the Offering. Nothing in this Agreement shall act as an independent contractor, and not as a fiduciary, and any duties be construed to limit the ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) 1.2.1. On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the Company’s exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities Units to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof)Investors, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”)Investors.
1.2.2. As compensation for services rendered, and provided that any of the Securities Units are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds (the “Placement Fee”) received by the Company from the sale of Units at the Securities Closing, other than any gross proceeds received from a Referred Investor (the “Placement Fee”as defined below). The sale Company will enter into any subscription, purchase or other customary agreements as the Placement Agent or the Investors deem necessary or appropriate to consummate the Offering, all of which will be in form and substance reasonably acceptable to the Securities shall be made pursuant to securities purchase agreements in Placement Agent and the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B heretoInvestors. The Company shall have the sole right to accept offers to purchase the Securities Units and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its their respective affiliates may, solely at their discretion and without any obligation to do so, purchase Securities Units as principal; provided, however, that any such purchases by the Placement Agent (or its their respective affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) 1.2.3. This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesUnits, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities Units of the Company (other than pursuant to the grant of options or restricted stock awards under the Company's equity compensation plans or the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith; provided however that Acuitas Group Holdings, LLC may refer potential investors to the Company (“Referred Investors”).
(c) 1.2.4. The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities Units contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to in the Investors in a proposed takedown under the from a shelf registration statement on Form F-3 (Registration Statement No. 333-164822) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76.2% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale to Investors, excluding any Securities sold to any director or officer of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B heretoCompany. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis to solicit offers to purchase the Securities and to procure performance by the Investors in the Securities; provided, however, that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out .
(b) The term of the Placement Fee. Prior to Agent’s exclusive engagement will expire on the earlier of (i1) the date on which this Agreement is terminated Closing of the Offering and (ii) the Closing DateMay 7, 2010; however, the Company shall not, may terminate the engagement at any time with or without the prior written consent of the Placement Agent, solicit cause at any time and without liability or accept offers to purchase Securities (other than pursuant continuing obligation to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through Company. Upon termination, the Placement Agent will be entitled to collect all fees earned. Nothing in accordance herewith.
(c) The Company acknowledges and agrees that this Agreement shall be construed to limit the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Orckit Communications LTD)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities Units to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities Units are sold to Investors in the Offering, on the Closing Date (as defined in subsection (dc) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities Units (the “Placement Fee”). The sale of the Securities Units shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B C hereto. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Units received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities Units and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities Units as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentencetwo sentences.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesUnits, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesUnits. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase Securities Common Stock or Warrants (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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities Units shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx XxxXxxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, on or before October 15, 2014 or at such time on such other date as soon as practicable after may be agreed upon in writing by the determination of Company and the public offering price of the Securities, but not later than on October 25, 2013 Placement Agent (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares or Warrants which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares or Warrants shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities Shares or Warrants to an Investor whose offer with which it has acceptedentered into a Subscription Agreement, the Company shall indemnify and hold the Placement Agent harmless from and against any loss, claim claim, damage or damage liability incurred by the Placement Agent arising from or as a result of such default by the Company.
(ed) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), The Shares shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possibledelivered, through the facilities of The Depository Trust Company's DWAC system, Company and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such name or names and shall be in such denominations denominations, as the Placement Agent shall may request by written notice to the CompanyCompany at least one business day before the Closing Date. The Warrants shall be delivered in physical form to the Investors on or as promptly as practicable after the Closing Date.
Appears in 1 contract
Samples: Placement Agency Agreement (Synthetic Biologics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, contained and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall agrees to act as the Company’s exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale sale, on reasonable “best efforts” basis, by the Company of the Securities Notes and the Warrants to the Investors Investors. The Placement Agent shall use commercially reasonable efforts to assist the Company in a proposed takedown under obtaining performance by each Investor whose offer to purchase the Registration Statement (as defined in Section 2(a)(1) hereof), with Notes and the terms of the offering to be subject to market conditions and negotiations between the Company, Warrants has been solicited by the Placement Agent and accepted by the prospective Investors (Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, have any liability to the Company in the event any such takedown shall be referred to herein as the “Offering”)purchase is not consummated for any reason. As In compensation for the services rendered, and to be provided that any of by the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the OfferingPlacement Agent hereunder, the Company shall (i) pay to the Placement Agent an amount a cash fee (the “Cash Fee”) equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, Notes and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit Warrants as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds ) and (ii) issue to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver Agent, or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice may otherwise direct, warrants (the “Agent Warrants”), in substantially the same form as the Warrants with the changes described below, entitling the Placement Agent, or its assigns, to purchase up to an aggregate of 3.0% of the total number of Conversion Shares issuable upon the conversion of Notes sold in the offering (the “Agent Warrant Shares”) at an exercise price equal to the Companyexercise price of the Warrants. The Agent Warrants and the Agent Warrant Shares will be deemed compensation by the Financial Industry Regulatory Authority (“FINRA”) and may not be sold, transferred, pledged, hypothecated or assigned for a period of 180-days following the effective date of the offering pursuant to FINRA Rule 5110(g)
(1). The Cash Fee and the Agent Warrants are hereinafter referred to herein as the “Placement Fee”. The Placement Agent may, in its discretion, retain other brokers or dealers who are members of FINRA to act as selected dealers or subagents on the Placement Agent’s behalf in connection with the offering of the Securities, payment to whom shall be solely the responsibility of the Placement Agent.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the Company’s exclusive placement agent agent, on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities Shares to the Investors investors in a proposed takedown offering of the Shares (the “Offering”) under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), . with the terms of the offering Offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors investors in the Offering (such takedown shall be referred to herein as the “OfferingInvestors”, with each of the Investors, an “Investor”). As compensation for services rendered, and provided that any of the Securities Shares are sold to the Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offeringbelow), the Company shall pay to the Placement Agent Agent, an aggregate amount (the “Placement Fee”) equal to 7% of the gross proceeds received by the Company from the sale of the Securities Shares minus $25,000. In addition, the Placement Agent shall receive compensation warrants to purchase 300,000 shares of Common Stock (the “Placement FeeCompensation Warrants”). The Compensation Warrants in the form attached herewith as Exhibit E shall be exercisable commencing 6 months after the date of the sale of the Securities Shares at an exercise price of $0.85 per share. The Company acknowledges that any expenses directly made by it in connection with the Offering such as payment for background checks will not be reimbursed by the Placement Agent and will not be counted against the Placement Fee.
(b) The sale of the Shares shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. All Investors will be offered identical terms with respect to the Offering. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer in whole or in part, for any reason or for no reason. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their its discretion and without any obligation to do so, purchase Securities Shares as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(bc) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesShares, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may at its sole discretion retain other brokers or dealers to act as sub-agents and/or co-placement agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities any securities of the Company (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 Agent in accordance herewith. Notwithstanding the foregoing, the Placement Agent hereby consents to the Company offering shares of its Common Stock to accredited investors approved first by the Placement Agent on substantially identical terms to other purchasers in an offering (the “Reg D Offering”) governed by Rule 506 of the Securities Act of 1933, as amended (including the rules and regulations promulgated by the Commission thereunder, the “Securities Act”).
(cd) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities Shares contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(de) Payment of the purchase price for, and delivery of, the Securities Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxx Xxxxxxx Procter Xxxxx and Xxxxxxxx & Worcester LLP, counsel for the Placement Agent, located at The New York Times Building0000 Xxxxxx xx xxx Xxxxxxxx, 000 Xxxxxx Xxx00xx Xxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the SecuritiesShares, but not later than on October 25February 2, 2013 2012 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares shall have been delivered to the Investor thereof Investors against payment therefore therefor by such Investorthe Investors. If the Company shall default in its obligations to deliver Securities the Shares to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(ef) Concurrently with On or before the execution and delivery Closing Date, each Investor shall pay by wire transfer of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into immediately available funds to an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of specified by the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities Shares such Investor has agreed to purchase and (y) the purchase price per unit thereof as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall (i) deliver or cause to be delivered the Securities Shares to the Investors, with the such delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail (ii) pay to the Investors to Placement Agent (A) the addresses set forth on Placement Fee and (B) the applicable Subscription AgreementCompensation Warrants.
(fg) The Securities Shares shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities to from the Investors in a proposed takedown under the Registration Statement Company's shelf registration statement on Form S-3 (as defined in Section 2(a)(1) hereofFile No. 333-143454), with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown Investors. The Placement Agent shall act on a best efforts basis and does not guarantee that it will be referred able to herein as sell the “Securities in the prospective Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offeringbelow), the Company shall pay to the Placement Agent an aggregate amount equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis purchase price to the Investors for each Share is US$6.75 and does not guarantee that it will be able the exercise price to raise new capital in the OfferingInvestors of each share of common stock issuable upon exercise of the Warrants is US$8.45. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering.
(b) Concurrently with the Closing (as defined below) for the Offering, the fees of which shall be paid out Company will issue to the Placement Agent warrants to purchase Common Stock in an amount and with such terms as set forth in Schedule I hereto.
(c) The term of the Placement Fee. Prior to Agent's exclusive engagement will be the earlier of (i) the Closing Date and (ii) six (6) months from the date hereof (the “Exclusive Term”); however, a party hereto may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Upon termination or expiration of this Agreement, the Placement Agent will be entitled to collect all fees earned, and to be reimbursed for all reimbursable expenses (as set forth in Section 6 below) incurred, through the date of termination or expiration, as applicable. Notwithstanding the foregoing, if during the 180 day period beginning on which the date this Agreement is terminated and (ii) the Closing Dateor otherwise expires, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges issues and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and sells any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent securities of the Company, the Company agrees to pay to the Placement Agent upon the closing of such transaction or transactions contemplated hereby a cash fee equal to the amount that would otherwise have been payable to the Placement Agent had such transaction or other matters relating transactions occurred during the Exclusive Term. Nothing in this Agreement shall be construed to such transactions has been and will be performed solely for limit the benefit ability of the Placement Agent and has not been and shall not be performed on behalf of the Company or its affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent business relationship with respect to any breach entities or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later persons other than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (China Precision Steel, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offer and sale by the Company of the Securities pursuant to the Investors in a proposed takedown under the Company's Registration Statement (Statement, as defined in Section 2(a)(1) hereof)below, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the CompanyCompany and the Placement Agent. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Shares and the prospective Investors (Company shall have the sole right to accept offers to purchase Shares and may reject any such takedown offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be referred to herein as made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “OfferingClosing Date”). We expect to have one Closing. As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the each Closing Date (as defined in subsection (d) of this Section 1) of the OfferingDate, the Company shall pay to the Placement Agent an amount the fees and expenses set forth below:
(i) A cash fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing of the Offering; plus a non-accountable expense allowance equal to 1% of the gross proceeds received by the Company from the sale of the Securities at the applicable Closing of the Offering.
(ii) Such number of Common Stock purchase warrants (the “Placement FeeAgent Warrants”) to the Placement Agent or its designees at each Closing to purchase shares of Common Stock equal to 5% of the aggregate number of Shares sold in the applicable Closing of the Offering. The Placement Agent Warrants shall have the same terms as the warrants issued to the Investors in the Offering, provided that the exercise price shall be 125% of the public offering price per share and the expiration date shall be 5 years from the effective date of the Registration Statement, and such Placement Agent Warrants shall not be exercisable for a period of 180 days from the effective date of the Registration Statement. The Placement Agent Warrants shall have a cashless exercise provision and one demand registration right and unlimited piggyback registration rights for the term of the Placement Agent Warrants, but shall not have any price-based anti-dilution provision. The Placement Agent Warrants shall not be transferable for 180 days from the date of effectiveness or commencement of sales in the Offering except as permitted by Financial Industry Regulatory Authority (“FINRA”) Rule 5110(g)(1). The sale number of Placement Agent Warrants issuable at Closing shall be subject to reduction to whatever extent is necessary to comply with the compensation limits imposed by FINRA Rule 5110.
(iii) The Company also agrees to reimburse Placement Agent’s expenses (with supporting invoices/receipts) up to a maximum of $35,000 for Placement Agent’s counsel, plus up to a further $20,000 for actual road show expenses. Placement Agent acknowledges receipt of the Securities sum of $25,000 against such expenses prior to the execution of this Placement Agency Agreement, and the balance of the reimbursement shall be made pursuant to securities purchase agreements payable immediately upon (but only in the form included as Exhibit A hereto (each, event of) a “Subscription Agreement” and collectivelyClosing of the Offering. In the event the Offering is terminated prior to a Closing, the “Subscription Agreements”) on maximum reimbursement of the terms described on Exhibit B heretoPlacement Agent’s expenses shall be $35,000, which amount includes all expenses incurred in conducting background checks of the Company’s officers and directors. The Company shall have pay other expenses as set forth in Section 7 of the sole right engagement letter between us dated January 21, 2015, without duplication.
(b) For a period of twelve (12) months following the date of the commencement of sales in connection with the Offering, if the Company or any Subsidiary or successor of the Company determines to accept offers to purchase the Securities and may reject any such offer in whole raise funds by means of a public offering or in part. Notwithstanding the foregoinga private placement of equity, it is understood and agreed that equity linked or debt securities using an investment bank, underwriter or placement agent, the Placement Agent shall have the right to act as sole investment bank, sole underwriter or sole placement agent for such financing on terms (including commissions and discounts) not less favorable to the Company or such Subsidiary or successor as may be elsewhere obtained by the Company (the “Right of First Refusal”); provided, however, notwithstanding anything to the contrary provided herein or elsewhere, in no event shall the Right of First Refusal of the Placement Agent be applicable to any debt, equity and/or any other financing undertaken by the Company if the net proceeds therefrom shall be used solely for the purpose of acquiring a ship vessel and/or any other acquisitions of specific businesses and/or assets of a third party and not used for general working capital or to fund a potential acquisition pool (“Acquisition Funding”). If the Placement Agent fails to accept in writing its affiliates mayrole in the public or private sale of equity or debt securities within 5 business days of receipt of notice from the Company or such Subsidiary or successor of such offering, solely at their discretion Placement Agent will have no claim or right with respect to any such offering in such notice. If the Placement Agent determines to accept such engagement, the agreement governing such engagement will contain the provisions of this Agreement as are applicable (other than economic fee or compensatory arrangements or provisions), including indemnification, and without other customary provisions which are appropriate to transactions of similar size and nature. Notwithstanding anything to the contrary contained herein, this Section 1(b) shall be subject to compliance with FINRA Rule 5110(f)(2)(D). In connection with the right of first refusal set forth in this Section 1(b), the Placement shall have no more than one opportunity to waive or terminate such right of first refusal in consideration of any obligation to do so, purchase Securities as principalpayment or fee in compliance with FINRA Rule 5110(f)(2)(E)(ii)
(c) The term of the Placement Agent's exclusive engagement will be until the completion or termination of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any such purchases by time upon 5 days written notice to the other parties; provided, however, notwithstanding anything to the contrary provided herein or elsewhere the Placement Agent’s exclusive engagement shall not apply to Acquisition Financing. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D)(i), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent (or its affiliatesAffiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) shall be fully disclosed to other than the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of As used herein (i) the date on which this Agreement is terminated “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) the Closing Date“Affiliate” means any Person that, the Company shall notdirectly or indirectly through one or more intermediaries, without the prior written consent of the Placement Agent, solicit controls or accept offers to purchase Securities (other than pursuant to the exercise of options is controlled by or warrants to purchase shares of Common Stock that is under common control with a Person as such terms are outstanding at the date hereof) otherwise than through the Placement Agent used in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of construed under Rule 405 under the Securities contemplated hereby (including in connection with determining the terms Act of the Offering), shall be contractual in nature1933, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing amended (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing DateSecurities Act”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Sino-Global Shipping America, Ltd.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement agreement (this the “Agreement”) between the Company and ThinkEquity, A Division of Fordham Financial Management Inc. (“ThinkEquity”), ThinkEquity shall be the Company’s non-exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a one or more proposed takedown under the takedowns from shelf Registration Statement No. 333-230503, or other registration statement(s) filed or to be filed to accomplish the takedowns (as defined in Section 2(a)(1) hereofcollectively the “Registration Statement”), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent ThinkEquity and the prospective Investors (such each takedown shall be referred to herein as the an “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the any Offering, on the Closing Date (as defined in subsection (dbelow) of this Section 1) of the each Offering, the Company shall pay to the Placement Agent an amount in cash equal to 78% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Agent’s Fee”). The sale Company will pay the Placement Agent’s Fee by wire of immediately available funds to the Securities shall be made pursuant to securities purchase agreements instructions provided in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, immediately upon receipt of the “Subscription Agreements”) on proceeds of the terms described on Exhibit B heretoOffering at each Closing Date. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in any prospective Offering. The Company acknowledges that any advice given by ThinkEquity to the OfferingCompany is solely for benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Staffing 360 Solutions, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between , Rxxx shall serve as the Company and the Placement Agent, the Placement Agent shall act as exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under from the Registration Statement (as defined in Section 2(a)(1) hereof2 below), with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent Rxxx and the Investors. Rxxx shall act on a best efforts basis and does not guarantee that it will be able to sell the Securities in the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offeringbelow), the Company shall pay to the Placement Agent Rxxx an aggregate amount equal to 76.5% of the gross proceeds received by the Company from the sale of such Securities. The purchase price of the Securities to the Investors (the “Placement FeeOffering Price”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed mutually agreed to between the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesRxxx. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent Rxxx may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, . The term of Rxxx’x exclusive engagement will be 30 days from the date hereof (the “Exclusive Term”). Rxxx will be entitled to collect all fees of which shall be paid out of the Placement Feeearned through termination. Prior to the earlier of The Company also agrees (i) to reimburse Rxxx up to $35,000 for its reasonable out-of-pocket expenses, including the date on which this Agreement is terminated fees and disbursements of its counsel, subject to submission of applicable documentation to the Company (reasonably acceptable to the Company) evidencing such out-of-pocket expenses that were incurred, and (ii) subject to the Closing Dateforegoing, the Company shall not, without the prior written consent such reimbursement may be made directly out of the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties proceeds of the Placement Agent with respect Closing; provided, however, that in no event shall Rxxx be entitled to providing investment banking services to the Company, reimbursement for out-of-pocket expenses (including the offering fees and disbursements of the Securities contemplated hereby (including its counsel) in connection with determining the terms excess of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely $35,000 to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in did not give its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Companyprior written approval.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Acura Pharmaceuticals, Inc)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to in the Investors in a proposed takedown under the from a shelf registration statement on Form S-3 (Registration Statement No. 333-150340) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7(a) 6.0% and 2.0% (non-accountable) (for a total of 8.0%) of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” Securities; and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) the Placement Agent’s out-of-pocket Financial Industry Regulatory Authority (“FINRA”)-related legal expenses in excess of $20,000, up to a maximum of $20,000. This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis to solicit offers to purchase the Securities and to procure performance by the Investors in the Securities; provided, however that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of .
(ib) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent The term of the Placement Agent’s exclusive engagement will be six months; however, solicit or accept offers to purchase Securities (other than pursuant the Company may terminate the engagement at any time upon 5 days written notice to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through Placement Agent. Upon termination, the Placement Agent will be entitled to collect all fees earned and, to the extent provided herein, to be reimbursed for expenses incurred through the date of termination. Nothing in accordance herewith.
(c) The Company acknowledges and agrees that this Agreement shall be construed to limit the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Newbridge Securities Corporation shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent Agent, an amount equal to 75% of the gross proceeds received by the Company from the sale of the Securities plus a corporate financing fee of 1% of the gross proceeds received by the Company (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its respective affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Upon notice to the Company, the Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated pursuant to Section 8; and (ii) the Closing Date, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities securities of the Company (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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto; except to the extent that the Placement Agent is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have acted with gross negligence or willful misconduct. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Lxxxxxxxxx Xxxxxxx Procter LLPPC, counsel for the Placement Agent, located at The New York Times Building60 Xxxxxxxxxx Xxxxxx, 000 Xxxxxx XxxRoseland, Xxx Xxxx, XX 00000 NJ 07068 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25January 27, 2013 2010 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLCAmerican Stock Transfer and Trust Company, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their the purchase of Securities as set forth herein through the facilities of The Depository Trust Company’s DWAC systemsystem (or, if requested by any Investor, as indicated on the signature page of the Subscription Agreement for such Investor, through the physical delivery of certificates evidencing the Shares purchased by such Investor to the residential or business address indicated on such signature page). Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit Share as set forth on the cover page of the Prospectus (as defined belowthe “Purchase Amount”). The aggregate of such amounts is herein referred to as the “Escrow Funds”. .” On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and Company, the Placement Agent and such other parties as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, made through the facilities of The Depository Trust Company's ’s DWAC system, and system (or through the physical delivery of certificates evidencing the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription AgreementShares as described above).
(f) The Securities shall be registered in such names and in such denominations as indicated on the Placement Agent shall request by written notice to signature page of the CompanySubscription Agreement for each Investor.
Appears in 1 contract
Samples: Placement Agency Agreement (China Yida Holding, Co.)
Agreement to Act as Placement Agent. (ai) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount A cash fee equal to 78.0% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase Securities (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding Shares at the date hereof) otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success closing of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”).
(ii) at The Company also agrees to reimburse Placement Agent’s travel and other out-of-pocket expenses up to a maximum of $75,000 in the offices event of Xxxxxxx Procter LLPa Closing of the Offering, counsel for unless otherwise agreed by the Company and the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after payable immediately upon the determination Closing of the public offering price Offering, or up to a maximum of $25,000 in the event that there is not a Closing of the SecuritiesOffering, but not later than on October 25, 2013 (such date payable upon the ending of payment and delivery being herein called the “Closing Date”)Engagement Period. All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with Upon the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus Engagement Agreement (as defined below). The aggregate , the Company delivered to the Placement Agent an amount of such amounts is herein referred $25,000 as an advance to as be applied towards reasonable out-of-pocket expenses actually incurred (the “Escrow FundsAdvance”). On If the ending of the Engagement Period occurs prior to a Closing Dateof the Offering, Placement Agent shall return any portion of the Advance not used to pay its accountable out-of-pocket expenses actually incurred.
(iii) In addition, if the Company terminates the Engagement Agreement (as defined below) prior to Closing of the Offering (other than for Cause), then if within three (3) months following such time, the Escrow Company completes any financing of equity, equity-linked, convertible or debt or other capital raising activity with, and receives any proceeds from, any of the investors introduced by Placement Agent will disburse during the Escrow Funds engagement term (a list of which investors shall be provided to the Company and following termination of the Engagement Period), then the Company will pay the Placement Agent as provided in upon the Escrow Agreement and the Company shall deliver closing of such financing or cause to be delivered the Securities receipt of such proceeds, with respect to the Investorsproceeds received from such investors, with the delivery compensation set forth in Section 1(a)(i)-(ii) herein. “Cause,” for the purpose of this Agreement, shall mean, as determined by a court of competent jurisdiction, the Shares to be madePlacement Agents gross negligence, if possiblewillful misconduct, through the facilities or a material breach of The Depository Trust Company's DWAC systemthis Agreement, after being notified in writing of such conduct, and the delivery not curing such alleged conduct within ten (10) business days of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreementnotification of such alleged wrongful conduct.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Virios Therapeutics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof)Shares, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Shares, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Shares and the Company shall have the sole right to accept offers to purchase Shares and may reject any such takedown offer, in whole or in part. The sale of the Shares to any Purchaser will be evidenced by a securities purchase agreement (the “Purchase Agreement”) between the Company and such Purchaser in a form mutually agreed upon by the Company and the Investors. Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Shares shall be referred to herein as made in one or more closings (the “OfferingClosing” and the date on which such Closing occurs, the “Closing Date”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the OfferingDate, the Company shall pay to the Placement Agent an amount the fees and expenses set forth below:
(i) A cash fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities Shares at each Closing.
(ii) A non-accountable expense reimbursement of 1% of the “Placement Fee”). The gross proceeds received by the Company from the sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely Shares at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentenceeach Closing.
(biii) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital As provided in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateSection 6, the Company shall not, without the prior written consent of the also agrees to reimburse Placement Agent, solicit or accept offers ’s expenses up to purchase Securities (other than pursuant to the exercise a maximum of options or warrants to purchase shares of Common Stock that are outstanding $75,000 at the date hereof) otherwise than through the Placement Agent in accordance herewithfirst Closing.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Securities Purchase Agreement (Kartoon Studios, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown under Company’s registration statement on Form S-3 (File No. 333-217051) (the “Registration Statement Statement”) (as defined in Section 2(a)(1such offering, the “Offering”) hereof), with the terms of the offering to be subject to market conditions and negotiations between the CompanyCompany and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent and the prospective Investors or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Shares and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “Closing Date”). As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed reduced to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered 3% with respect to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of investors listed on Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior B to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus Investment Banking Agreement (as defined below) up to each investor’s pre-Offering percentage ownership of the Company, then any percentage thereafter shall be 8%; provided, however, that the cash fee shall be reduced to 3% for the full amount of gross cash consideration paid by any investors listed on Exhibit B to the Investment Banking Agreement (as defined below) that do not currently own Company common stock).
(ii) The Company also agrees to reimburse Ladenburg’s expenses up to $30,000 without the Company’s consent (provided, however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement). Such reimbursement shall be payable immediately upon (but only in the event of) a Closing of the Offering.
(b) The aggregate term of such amounts is herein referred to the Placement Agent’s exclusive engagement will be as the “Escrow Funds”. On the Closing Dateprovided in Section 2 of that certain Investment Banking Agreement dated March 5, the Escrow Agent will disburse the Escrow Funds to 2019 between the Company and the Placement Agent as provided (the “Investment Banking Agreement”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the Escrow Agreement and the Company shall deliver indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof, will survive any expiration or termination of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Samples: Placement Agency Agreement (Yield10 Bioscience, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities Shares from time to time pursuant to the Investors in Company's registration statement on Form S-3 (File No. 333-205545) (the “Registration Statement”) (such offering, the “Public Offering”), together with a proposed takedown under concurrent private placement of the Registration Statement (as defined in Section 2(a)(1) hereof)Warrants to Qualified Institutional Buyers and a limited number of institutional accredited investors, with the terms of such offering (such private placement, the offering “Private Placement” and, together with the Public Offering, the “Offering”) to be subject to market conditions and negotiations between the CompanyCompany and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent and the prospective Investors or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by fees and expenses set forth in the Company.
(e) Concurrently with the execution and delivery of this Investment Banking Agreement, dated July 1, 2015, between the Company, the Placement Agent Company and Collateral Agents, LLC, as escrow agent Ladenburg (the “Escrow AgentEngagement Letter”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior Notwithstanding anything to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Datecontrary contained herein, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investorsprovisions concerning confidentiality, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.indemnification
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement Agreement, Xxxxxxx Xxxxx & Associates, Inc. and Ladenburg Xxxxxxxx & Co. Inc. shall be the Company’s exclusive placement agents (this “Agreement”) between the Company and the Placement Agentin such capacity, the “Placement Agent shall act as placement agent Agents”), acting on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors Purchasers in a proposed takedown private placement exempt from registration under the Registration Statement Securities Act of 1933, as amended (as defined in the “Securities Act”), pursuant to Section 2(a)(14(a)(2) hereof)thereof, with the terms of the offering to be subject to market conditions and negotiations between among the Company, the Placement Agent Agents and the prospective Investors Purchasers (such takedown offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors Purchasers in the Offering, on the Closing Date (as defined in subsection (dSection 1(c) of this Section 1hereof) of the Offering, the Company shall pay to the Placement Agent Agents an amount in the aggregate equal to 72.2% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The Placement Agents will not receive any fees in connection with the exercise of the Warrants. The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A A-2 hereto (each, a “Subscription Purchase Agreement” and collectively, the “Subscription Purchase Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent Agents to purchase any of the Securities, and the Placement Agent Agents shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent Agents shall act on a commercially reasonable best efforts basis and does do not guarantee that it they will be able to raise new capital in the Offering. The Placement Agent Agents may retain other brokers or dealers to act as sub-agents on its their behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement AgentAgents, solicit or accept offers to purchase 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 Agent Agents in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the Placement AgentCompany, located at The New York Times BuildingXxx Xxxxxxx Xxxxxx, 000 Xxxxxx XxxXxxxxx, Xxx XxxxXxxxxxxxxxxxx 00000, XX 00000 promptly following the satisfaction of all conditions for Closing set forth in the Purchase Agreements (the “Closing Conditions”) or on such later date or at 10:00 a.m., local time, such different location as soon as practicable after the determination of the public offering price of the Securitiesparties shall agree in writing, but not prior to or later than on October 25the third Business Day (as defined herein) after, 2013 the date that the Closing Conditions have been satisfied or waived by the appropriate party (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares and Warrants which the Company has agreed to sell pursuant to this Agreement and the Subscription Purchase Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares and Warrants shall have been delivered to the Investor Purchaser thereof against payment therefore therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver Securities the Shares and Warrants to an Investor a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent Agents harmless against any loss, claim or damage incurred by the Placement Agent Agents arising from or as a result of such default by the Company. “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Leap Therapeutics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities from time to time pursuant to the Investors in a proposed takedown under Company's registration statement on Form S-3 (File No.333-165733) (the “Registration Statement (as defined Statement”) and/or pursuant to exemption from the registration requirements of Section 5 of the Securities Act contained in Section 2(a)(14(a)(2) hereof)thereof and/or Regulation D thereunder, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent Company and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities and may reject any such takedown offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be referred to herein as made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “OfferingClosing Date”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the each Closing Date (as defined in subsection (d) of this Section 1) of the OfferingDate, the Company shall pay to the Placement Agent an amount the fees and expenses set forth below:
(i) A cash fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Placement FeeClosing”). The sale .
(ii) Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company also agrees to reimburse Ladenburg’s expenses, but in no event more than the lesser of 1% of the Securities gross proceeds in the Offering or $50,000 (provided, however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement). Such reimbursement shall be made pursuant to securities purchase agreements payable immediately upon (but only in the form included as Exhibit A hereto event of) a Closing of the Offering.
(each, a “Subscription Agreement” and collectively, b) The term of the Placement Agent's exclusive engagement will be until the earlier of (i) two (2) months from the date hereof or (ii) completion of the Offering (the “Subscription AgreementsExclusive Term”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal); provided, however, that a party hereto may terminate the engagement with respect to itself at any such purchases by time upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent (or its affiliatesAffiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) shall be fully disclosed to other than the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of As used herein (i) the date on which this Agreement is terminated “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) the Closing Date“Affiliate” means any Person that, the Company shall notdirectly or indirectly through one or more intermediaries, without the prior written consent of the Placement Agent, solicit controls or accept offers to purchase Securities (other than pursuant to the exercise of options is controlled by or warrants to purchase shares of Common Stock that is under common control with a Person as such terms are outstanding at the date hereof) otherwise than through the Placement Agent used in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of construed under Rule 405 under the Securities contemplated hereby (including in connection with determining the terms Act of the Offering), shall be contractual in nature1933, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing amended (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing DateSecurities Act”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Oxygen Biotherapeutics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the Company’s exclusive placement agent agent, on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to Shares in the Investors in a proposed takedown under the from a shelf registration statement on Form S-3 (Registration Statement No. 333-153891) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities Shares are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% (a) six and one-half percent (6½%) of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements Shares in the form included as Exhibit A hereto (each, a “Subscription Agreement” Offering; and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) all the Placement Agent’s reasonable out-of-pocket, legal and other expenses (with supporting invoices and receipts) up to a maximum of $65,000. This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesShares, and or an obligation for the Company to issue any Shares or complete the Offering. The Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis to solicit offers to purchase the Shares and to procure performance by the Investors in the purchase of the Shares; provided, however that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase the Shares and may reject any such offer, in whole or in part. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-sub agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of .
(ib) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent The term of the Placement Agent’s exclusive engagement will be six months; however, solicit or accept offers the Company may terminate the engagement at any time and for any reason upon 5 days written notice to purchase Securities (other than the Placement Agent. Upon termination, the Placement Agent will be entitled to collect all fees earned pursuant to the exercise of options or warrants terms hereof and, to purchase shares of Common Stock that are outstanding at the extent provided herein, to be reimbursed for all expenses incurred through the date hereof) otherwise than through of termination. Nothing in this Agreement shall be construed to limit the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Northern Technologies International Corp)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, contained and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall agrees to act as the Company’s placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale sale, on a best efforts basis, by the Company of the Offered Securities to the Investors Investors. The Placement Agent shall use commercially reasonable efforts to assist the Company in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering obtaining performance by each Investor whose offer to be subject to market conditions and negotiations between the Company, purchase Offered Securities has been solicited by the Placement Agent and accepted by the prospective Investors (such takedown Company, but the Placement Agent shall be referred not have any liability to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors Company in the Offering, on the Closing Date event any such purchase is not consummated for any reason.
(as defined in subsection (da) of this Section 1) of the Offering, the The Company shall pay to the Placement Agent an amount a cash fee (the “Placement Fee”) equal to 76.5% of the gross proceeds received by the Company from the sale of the Offered Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined belowhereinafter defined), less a credit of $25,000 representing a portion of the $35,000 cash advance previously paid by the Company to the Placement Agent. The aggregate of To the extent that this agreement is terminated, such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent advance will disburse the Escrow Funds be returned to the Company to the extent of out-of-pocket expenses not actually incurred by the Placement Agent. Payment of the Placement Fee with respect to the Common Stock will be paid at the Closing (as defined below) and payment of the Placement Fee with respect to the Warrants will be paid as soon as practicable following the exercise of the Warrants. The Placement Agent may, in its discretion, retain other brokers or dealers who are members of the Financial Industry Regulatory Authority, Inc. (“FINRA”) to act as selected dealers or subagents on such Placement Agent’s behalf in connection with the offering of the Offered Securities, payment to whom shall be solely the responsibility of the Placement Agent as provided in the Escrow Agreement and the Company shall deliver retaining such selected dealer or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreementsubagent.
(fb) The Securities Company shall issue and sell to the Placement Agent (and/or its designees) on the Closing Date a warrant (“Placement Agent Warrant”) for the purchase of an aggregate number of shares of Common Stock equal to 3% of the number of shares of Common Stock purchased at the Closing, having an exercise price per share equal to 100% of the public offering price per share of Common Stock at the offering. The Placement Agent Warrant in the form attached hereto as Exhibit A shall be registered exercisable, in whole or in part, commencing on a date which is 181 days from the Effective Date and expiring on the five-year anniversary of the Effective Date. The Placement Agent understands and agrees that there are significant restrictions pursuant to FINRA Rule 5110 against transferring the Placement Agent Warrant and the underlying shares of Common Stock during the first 180 days after the Effective Date and by its acceptance thereof shall agree that it will not sell, transfer, assign, pledge or hypothecate the Placement Agent Warrant, or any portion thereof, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for a period of 180 days following the Effective Date to anyone other than (i) a selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Placement Agent or of any such selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions.
(c) Delivery for the Placement Agent Warrant shall be made on the Closing Date [and shall be issued in the name or names and in such authorized denominations as the Placement Agent shall request by written notice to the Companymay request].
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown Section 4(a)(2) under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities Act, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Securities and the Company shall have the sole right to accept offers to purchase Securities and may reject any such takedown offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the Securities shall be referred to herein as made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “OfferingClosing Date”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the each Closing Date (as defined in subsection (d) of this Section 1) of the OfferingDate, the Company shall pay to the Placement Agent an amount the fees and expenses set forth below:
(i) A cash fee equal to 7% of the gross proceeds received by the Company from the sale of the Securities (at the “Placement Fee”). The sale Closing of the Securities shall be made pursuant Offering to securities purchase agreements in the form included as Exhibit A hereto Investors.
(each, a “Subscription Agreement” and collectively, the “Subscription Agreements”ii) on the terms described on Exhibit B hereto. The Company shall have the sole right also agrees to accept offers pay to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any $150,000 for out-of-pocket expenses, including the reasonable fees and expenses of its affiliates may, solely at their discretion Placement Agent’s counsel and without any obligation to do so, purchase Securities as principaldue diligence analysis; provided, however, that any such purchases by in the event that the Offering is terminated, the Company agrees to reimburse the Placement Agent (or its affiliates) shall be fully disclosed pursuant to the Company and approved by the Company in accordance with the previous sentenceSection 6 hereof.
(b) This Agreement shall not give rise The Company hereby agrees to any commitment issue to the Placement Agent (and/or its designees) on the Closing Date, upon payment of $100.00 by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date, warrants (“Placement Agent’s Warrants”) to purchase that number of Ordinary Shares equal to 5% of the Company aggregate number of Conversion Shares placed in the Offering with an exercise price equal to 110% of the Offering Price. The Placement Agent’s Warrant agreement shall notbe exercisable, without in whole or in part, commencing on the prior written consent issuance date and shall be exercisable for a period of five years. In the event that there is not an effective registration statement permitting for the resale of the shares underlying the Placement Agent’s Warrants, solicit or accept offers to purchase 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 Agent in accordance herewithWarrant’s shall be exercisable on a cashless basis. The Placement Agent’s Warrant Agreement and the Ordinary Shares issuable upon exercise thereof (the “PA Warrant Shares”) are hereinafter referred to together as the “Placement Agent’s Securities.”
(c) The Company acknowledges and agrees that term of the Placement Agent shall act as an independent contractorAgent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon sixty (60) days written notice to the other parties (provided that no such notice may be given until September 20, 2022 except in the case of termination for cause). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and not as a fiduciarythe Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rules, and will survive any duties expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby Persons (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth defined herein, and shall be owed solely to ) other than the Company. Each party hereto disclaims any intention to impose any fiduciary As used herein (i) “Persons” means an individual or similar duty on any other party hereto. Additionallycorporation, the Placement Agent has not advisedpartnership, nor is advisingtrust, the Company incorporated or any other person as to any legalunincorporated association, taxjoint venture, investmentlimited liability company, accounting joint stock company, government (or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility an agency or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby subdivision thereof) or other matters relating to entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such transactions has been terms are used in and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, construed under Rule 405 under the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the CompanyAct.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (CENNTRO ELECTRIC GROUP LTD)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities Shares to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities Shares are sold to Investors in the Offering, on the Closing Date (as defined in subsection (dc) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 75% of the gross proceeds received by the Company from the sale of the Securities Shares (the “Placement Fee”). The sale of the Securities Shares shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities Shares as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentencetwo sentences.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesShares, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesShares. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase Securities Common Stock (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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Gxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 600 Xxxxxx XxxXxxxxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, on or before October 6, 2014 or at such time on such other date as soon as practicable after may be agreed upon in writing by the determination of Company and the public offering price of the Securities, but not later than on October 25, 2013 Placement Agent (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities Shares to an Investor whose offer with which it has acceptedentered into a Subscription Agreement, the Company shall indemnify and hold the Placement Agent harmless from and against any loss, claim claim, damage or damage liability incurred by the Placement Agent arising from or as a result of such default by the Company.
(ed) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), The Shares shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possibledelivered, through the facilities of The Depository Trust Company's DWAC system, Company and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such name or names and shall be in such denominations denominations, as the Placement Agent shall may request by written notice to the CompanyCompany at least one business day before the Closing Date.
Appears in 1 contract
Samples: Placement Agency Agreement (Assembly Biosciences, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25November 17, 2013 2014 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with On the execution and delivery of this AgreementClosing Date, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account pay an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred ) to as the “Escrow Funds”. On the Closing DateCompany, the Escrow Agent will disburse Company shall pay the Escrow Funds Placement Fee to the Company and the Placement Agent as provided in the Escrow Agreement Agent, and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act serve as the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under from the Registration Statement (as defined in Section 2(a)(1) hereof2 below), as to the Shares, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and certain investors (the “Investors”). The Placement Agent shall act on a best efforts basis and the Placement Agent does not guarantee that it will be able to sell the Shares in the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offeringbelow), the Company shall pay to the Placement Agent an aggregate amount equal to 76.5% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”)Company. The sale of per Share purchase price to the Securities Investors shall be made pursuant mutually agreed to securities purchase agreements in between the form included as Exhibit A hereto (each, a “Subscription Agreement” Company and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering“Offering Price”). The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering; provided, however, to the extent that such other brokers or dealers are retained, the fees of which commissions paid to such brokers or dealers shall be reduce by equal amounts the compensation paid out of to the Placement FeeAgent. 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 The term of the Placement Agent, solicit or accept offers to purchase Securities ’s exclusive engagement will be thirty (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at 30) days from the date hereof) otherwise than hereof (the “Exclusive Term”). The Placement Agent shall be entitled to collect all fees earned through termination. The Company also agrees to reimburse the out of pocket and legal expenses of the Placement Agent in accordance herewith.
an amount up to $60,000. Such reimbursement shall be payable immediately upon (cbut only in the event of) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms Closing of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Ocean Power Technologies, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this the “Agreement”) between ), Xxxx shall serve as the Company and the Placement Agent, the Placement Agent shall act as exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under from the Registration Statement (as defined in Section 2(a)(1) hereof2 below), with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx and the Investors. Xxxx shall act on a best efforts basis and does not guarantee that it will be able to sell the Securities in the prospective Investors (such takedown Offering. It shall be referred a condition to herein the Offering that the Company enter into binding agreements (i) to convert all outstanding amounts under the Notes (as defined in Section 7(g)) into shares of Common Stock at a price no better than the purchase price of the Securities issued in the Offering (the “Debt Conversion”), which agreement shall be subject only to stockholder approval, the consummation of the Offering and certain customary conditions, and (ii) to sell to selected insiders, as agreed to by such persons and the Company, shares of Common Stock in an aggregate amount of no less than $500,000 on the same terms and conditions as the Securities are issued in the Offering (the “OfferingPIPE”), which agreement shall be subject only to stockholder approval, the consummation of the Offering and certain customary conditions. The Company shall use its best efforts to cause such agreements to be executed and to take any and all steps to cause such transactions to be presented to the Company’s stockholders for their approval.
(b) As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offeringbelow), the Company shall pay to the Placement Agent Xxxx an aggregate amount equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities Securities. The purchase price to the Investors for each Share is US$1.00 (the “Placement FeeOffering Price”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent Xxxx may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees . The term of which shall Xxxx’x exclusive engagement will be paid out of the Placement Fee. Prior to the earlier of sixty (i60) days from the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing hereof (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing DateExclusive Term”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) Xxxx will be established for the benefit of the Company and the Investors entitled to settle their purchase collect all fees earned through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreementtermination.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities from time to time pursuant to (i) the Investors in a proposed takedown under Company’s registration statement on Form S-3 (File No.333-192755) (the “Registration Statement Statement”) and (as defined ii) an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 2(a)(14(a)(2) hereof)thereof and/or Regulation D thereunder, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the CompanyCompany and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent and the prospective Investors or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Shares and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any loss, claim or damage incurred the fees and expenses set forth below:
(i) A cash fee equal to 8.0% of the gross proceeds received by the Placement Agent arising Company from or as a result the sale of such default by the CompanySecurities at the closing of the Offering (the “Closing”).
(eii) Concurrently Subject to compliance with FINRA Rule 5110(f)(2)(D), the execution Company also agrees to reimburse Ladenburg’s reasonable, out-of-pocket expenses. Such reimbursement shall be payable immediately upon (but only in the event of) a Closing of the Offering.
(b) The term of the Placement Agent’s exclusive engagement will be until the earlier of (i) December 31, 2015 or (ii) completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and delivery contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent and Collateral Agentsor its Affiliates to pursue, LLCinvestigate, as escrow agent (the “Escrow Agent”)analyze, shall enter into an escrow agreement invest in, or engage in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”)investment banking, pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus financial advisory or any other business relationship with Persons (as defined below)) other than the Company. The aggregate As used herein (i) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such amounts is herein referred to terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Escrow FundsSecurities Act”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement).
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to in the Investors in a proposed takedown under the from a shelf registration statement on Form S-3 (Registration Statement No. 333-150340) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7(a) 6.0% and 2.0% (non-accountable) (for a total of 8.0%) of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” Securities; and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) the Placement Agent’s out-of-pocket Financial Industry Regulatory Authority (“FINRA”)-related legal expenses in excess of $20,000, up to a maximum of $7,500. This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis to solicit offers to purchase the Securities and to procure performance by the Investors in the Securities; provided, however that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of .
(ib) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent The term of the Placement Agent’s exclusive engagement will be six months; however, solicit or accept offers to purchase Securities (other than pursuant the Company may terminate the engagement at any time upon 5 days written notice to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through Placement Agent. Upon termination, the Placement Agent will be entitled to collect all fees earned and, to the extent provided herein, to be reimbursed for expenses incurred through the date of termination. Nothing in accordance herewith.
(c) The Company acknowledges and agrees that this Agreement shall be construed to limit the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a one or more proposed takedown under the takedowns from shelf Registration Statement No. 333-74976, or other registration statement(s) filed or to be filed to accomplish the takedowns (as defined in Section 2(a)(1) hereofcollectively the “Registration Statement”), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such each takedown shall be referred to herein as the an “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the any Offering, on the Closing Date (as defined in subsection (dbelow) of this Section 1) of the each Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”)Securities. The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in any prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the OfferingCompany is solely for benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(cb) The Company acknowledges term of Xxxx Capital’s exclusive engagement will be three months; however, either party may terminate the engagement at any time upon 10 days written notice to the other party. Upon termination, Xxxx Capital will be entitled to collect all fees earned and agrees that expenses incurred through the date of termination, and the amounts described in the next sentence, if applicable. If Xxxx Capital’s exclusive engagement is terminated prior to the expiration of the three month period beginning on the date hereof (the “Exclusive Term”), any person to whom Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to introduced the Company, including the offering of the Securities contemplated hereby (including or with which we have discussions or negotiations about an investment in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legalduring the term of this Agreement, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of purchases securities from the Company, the transactions contemplated hereby or other matters relating Company agrees to pay to Placement Agent upon the closing of such transactions has transaction a cash fee in the amount that would otherwise have been and will be performed solely for the benefit of payable to the Placement Agent and has not been and had such transaction occurred during the term. The Placement Agent shall not be performed on behalf of provide the Company with a list of investors as described in this section within five (5) business days of termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of Xxxx Capital or its affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent business relationship with respect to any breach entitles or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later persons other than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Targeted Genetics Corp /Wa/)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s non-exclusive placement agent (in such capacity, the “Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis”), in connection with the issuance and sale by the Company of the Securities in one or more proposed takedowns (each takedown shall be referred to the Investors in a proposed takedown under the herein as an “Offering”) from shelf Registration Statement No. 333-103624 (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the . The terms of the offering to each Offering shall be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown Investors. Xxxx Capital shall be referred use commercially reasonable efforts to herein as facilitate each Offering for the “Offering”)Company. As compensation for services rendered, and provided that any of the Securities are sold to Investors in the any Offering, on the Closing Date (as defined in subsection (dbelow) of this Section 1) of the each Offering, the Company shall pay to the Placement Agent an amount equal to 7% of negotiated in connection with a particular Offering. In connection with each Offering, the gross proceeds received by the Company from the sale of the Securities parties will enter into a pricing agreement (the “Placement FeePricing Agreement”). The sale of the Securities , which shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, deemed a “Subscription Agreement” part of this Agreement and collectively, the “Subscription Agreements”) on which shall set forth the terms described on Exhibit B heretoof such Offering, including the compensation to be paid to Xxxx Capital for services rendered in connection therewith. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in any prospective Offering.
(b) Either party may terminate the Offeringengagement at any time upon 10 days written notice to the other party. Upon termination, Xxxx Capital will be entitled to collect all fees earned and expenses incurred through the date of termination.
(c) The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without your prior written consent. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which . Nothing in this Agreement shall be paid out construed to limit the ability of the Placement Fee. Prior Xxxx Capital or its affiliates to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Datepursue, the Company shall notinvestigate, without the prior written consent of the Placement Agentanalyze, solicit invest in, or accept offers to purchase 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 Agent engage in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractorinvestment banking, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entitles or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown under Company's registration statement on Form S-3 (File No. 333-248763) (the “Registration Statement Statement”) (as defined in Section 2(a)(1such offering, the “Offering”) hereof), with the terms of the offering to be subject to market conditions and negotiations between the CompanyCompany and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent and the prospective Investors or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Shares and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Shares and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “Closing Date”). As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i) a cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Closing”) at (reduced to 5% with respect to the offices investors listed on Exhibit B to the Investment Banking Agreement).
(b) The term of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) 's exclusive engagement will be established for the benefit as provided in Section 2 of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closingthat certain Investment Banking Agreement dated April 27, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to 2021 between the Company and the Placement Agent as provided (the “Investment Banking Agreement”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the Escrow Agreement and the Company shall deliver indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof, will survive any expiration or termination of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown Section 4(a)(2) under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities Act, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any lossthe fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the Closing of the Offering to Investors.
(ii) The Company also agrees to pay to the Placement Agent $25,000 for out-of-pocket expenses, claim or damage incurred including the reasonable fees and expenses of Placement Agent’s counsel and due diligence analysis; provided, however, that in the event that the Offering is terminated, the Company agrees to reimburse the Placement Agent pursuant to Section 6 hereof.
(b) The Company hereby agrees to issue to the Placement Agent (and/or its designees) on the Closing Date, upon payment of $100.00 by the Placement Agent arising from on the Closing Date, warrants (“Placement Agent’s Warrants”) to purchase that number of shares of Common Stock equal to 5% of the aggregate number of Conversion Shares placed in the Offering. The Placement Agent’s Warrant agreement shall be exercisable, in whole or as in part, commencing on the six (6) month anniversary of the issuance date and shall be exercisable for a result period of such default by five years. In the Company.
(e) Concurrently with event that there is not an effective registration statement permitting for the execution and delivery resale of this Agreement, the Companyshares underlying the Placement Agent’s Warrants, the Placement Agent Warrant’s shall be exercisable on a cashless basis. The Placement Agent’s Warrant Agreement and Collateral Agents, LLC, as escrow agent the shares of Common Stock issuable upon exercise thereof (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow AccountPA Warrant Shares”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein are hereinafter referred to together as the “Escrow Funds”. On Placement Agent’s Securities.” The Placement Agent agrees that it will not sell, transfer, assign, pledge or hypothecate the Placement Agent’s Warrant Agreement, or any portion thereof, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for a period of one hundred eighty (180) days following the Closing DateDate to anyone other than (i) a selected dealer in connection with the Offering, the Escrow Agent will disburse the Escrow Funds to the Company and or (ii) a bona fide officer or partner of the Placement Agent as provided or selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions. Delivery of the Placement Agent’s Warrant Agreement shall be made on the Closing Date and shall be issued in the Escrow Agreement and the Company shall deliver name or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such authorized denominations as the Placement Agent shall request by may request.
(c) The term of the Placement Agent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon fifteen (15) days written notice to the other parties (provided that no such notice may be given until March 31, 2020 except in the case of termination for cause). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rules, will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined herein) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
Appears in 1 contract
Samples: Placement Agency Agreement (Summit Wireless Technologies, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities Common Units and Pre-Funded Units (if any) pursuant to the Investors Company’s registration statement on Form S-1, as amended (File No. 333-279133) (and including any registration statement prepared and filed by the Company in a proposed takedown under accordance with Rule 462(b) pursuant to the Securities Act) (the “Registration Statement (as defined in Section 2(a)(1) hereofStatement”), with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Common Units and Pre-Funded Units (if any), or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite or purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall market the Securities only to “accredited investors” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act of 1933, as amended (the “Securities Act”). The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase the Common Units and Pre-Funded Units (if any) and the Company shall have the sole right to accept offers to purchase the Common Units and Pre-Funded Units (if any) and may reject any such takedown offer, in whole or in part. Subject to the terms and conditions hereof, payment of the purchase price for, and delivery of, the applicable Securities shall be referred to herein as made at the closing of the Offering (the “OfferingClosing” and the date on which the Closing occurs, a “Closing Date”). The Closing shall occur via “Delivery Versus Payment” (i.e., on the Closing Date) and the Company shall issue the Shares directly to the account designated by the Placement Agent and, upon receipt of such Shares, the Placement Agent shall electronically deliver such Shares to the applicable Investor and payment shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company and delivery of the Pre-Funded Warrants and the Warrants shall be delivered via The Depository Trust Company Deposit or Withdrawal at Custodian system for the account of the applicable Investor as set forth in the Purchase Agreement. As compensation for services rendered, and provided that any of the Securities are sold to Investors rendered in connection with the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the OfferingDate, the Company shall pay to the Placement Agent an amount the fees and expenses set forth below and issue the following securities (if applicable):
(i) A cash fee equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities Common Units and Pre-Funded Units (if any) at the Closing.
(ii) reimbursement of the Placement Agent’s expenses in connection with the Offering up to $75,000.
(iii) If the Offering results in gross proceeds to the Company equal to or greater than $5 million, the Company shall issue to the Placement Agent Common Stock purchase warrants to purchase up to 3% of the aggregate number of Common Units and Pre-Funded Units (if any) issued in the Offering, with an exercise price of 100% of the combined public offering price per Common Unit (or Pre-Funded Unit)(the “Placement FeeAgent Warrant”). The sale Placement Agent Warrant shall not be exercisable for six (6) months after the date of the Securities shall be made pursuant to securities purchase agreements in Closing and will expire five years after the form included as Exhibit A hereto (eachcommencement of sales of the Offering, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentenceFinancial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5110(e), but shall otherwise be identical in all material respects to the Series A Warrants and Series B Warrants included in the Common Units. The Placement Agent reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(b) This The term of the Placement Agent’s exclusive engagement shall end on July 22, 2024. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f) and (g) will survive any expiration or termination of this Agreement. Nothing in this Agreement shall not give rise be construed to any commitment by limit the ability of the Placement Agent or its Affiliates to purchase pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any of other business relationship with Persons (as defined below) other than the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of As used herein (i) the date on which this Agreement is terminated “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) the Closing Date“Affiliate” means any Person that, the Company shall notdirectly or indirectly through one or more intermediaries, without the prior written consent of the Placement Agent, solicit controls or accept offers to purchase Securities (other than pursuant to the exercise of options is controlled by or warrants to purchase shares of Common Stock that is under common control with a Person as such terms are outstanding at the date hereof) otherwise than through the Placement Agent used in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of construed under Rule 405 under the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary dutyAct.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxx shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities to all Investors (the “Placement Fee”) plus reimbursable costs and expenses of the Placement Agent pursuant to Section 4. The Placement Fee shall be payable to the Placement Agent at Closing, based upon the sale of the Shares, as provided in the Subscription Agreements (defined below). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its their respective affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its their respective affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is it advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLPLeClairRyan, A Professional Corporation, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx XxxXxxxx Xxxxxx, Xxx Xxxx, XX 00000 Xxx Xxxx, at 10:00 10 a.m., local New York time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 2528, 2013 except as otherwise agreed upon by the Company and the Placement Agent (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, (i) the Escrow Agent Investors will disburse wire the Escrow Funds purchase price for their respective Securities through their delivery versus payment (“DVP”) account set up at Xxxx as executing broker. Xxxx will use its Syndicate account as a facilitation account to the Company and the Placement Agent as provided in the Escrow Agreement and the settle Investors purchases. The Company shall deliver or cause to be delivered the Securities to Xxxx on behalf of the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's ’s DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement. Upon confirmation of the Shares by Xxxx on behalf of the Investors, Xxxx will instruct its clearing firm to release the wire to the Company. This will all occur during a closing call scheduled to settle the transaction.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxxxxx Xxxxx & Company, L.L.C., shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase subscription agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxxxxx Xxxxxxx Procter LLPPC, counsel for the Placement Agent, located at The New York Times Building00 Xxxxxxxxxx Xxxxxx, 000 Xxxxxx XxxRoseland, Xxx Xxxx, XX 00000 NJ 07068 (or at such other place as shall be agreed upon by the parties) at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 256, 2013 2010 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and (i) the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through (x) the facilities of The Depository Trust Company's ’s DWAC systemsystem or (y) delivery versus payment through The Depository Trust Company, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement and (ii) the Investors will wire the purchase price for their respective Securities to the Company or the Placement Agent, as applicable, pursuant to the terms of the Subscription Agreements and the Company will wire the amounts owed to the Placement Agent as provided in this Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and Xxxx Capital Partners, LLC (“Xxxx Capital”), Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to Shares in the Investors in a proposed takedown under from a shelf registration statement on Form S-3, including the exhibits thereto, as amended at the date of this Agreement (Registration Statement No. 333-159980) (as defined in Section 2(a)(1) hereofthe “Registration Statement”), with the terms of the offering such takedown to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities Shares are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7(a) 6.5% and 1.0% (non-accountable) (for a total of 7.5%) of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” Shares; and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) the Placement Agent’s out-of-pocket expenses and legal expenses in excess of $20,000, up to a maximum of $30,000 for legal expenses. Any expenses in excess of $60,000 in the aggregate shall require prior written approval of the Company. Air travel must be coach or economy class. This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesShares, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis to solicit offers to purchase the Shares and to procure performance by the Investors in the Shares; provided, however, that the Placement Agent does not guarantee that it will be able to raise new capital in the prospective Offering. The Company acknowledges that any advice given by Xxxx Capital to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may may, with the prior written consent of the Company, retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of .
(ib) the date on which this Agreement is terminated and (ii) the Closing Date, the Company shall not, without the prior written consent The term of the Placement Agent’s exclusive engagement (the “Engagement Period”) will be six months; however, solicit or accept offers to purchase Securities the Company may terminate the engagement at any time upon thirty (other than pursuant 30) days written notice to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through Placement Agent. Upon termination, the Placement Agent will be entitled to collect all fees earned and, to the extent provided herein, to be reimbursed for expenses incurred through the date of termination. Notwithstanding anything to the contrary contained herein, in accordance herewith.
no event shall Xxxx be entitled to any commission with respect to any sales of securities to any person or entity after the termination of the Engagement Period; provided, however, that if the Offering is not consummated during the Engagement Period and during the six (c6) The months following termination of this Agreement the Company acknowledges and completes an offering of its securities with any person introduced by Xxxx during the Engagement Period, the Company agrees to pay Xxxx upon the closing of such transaction the full cash fee in the amount that would otherwise have been payable to Xxxx had such transaction occurred during the Placement Agent Engagement Period. Nothing in this Agreement shall act as an independent contractor, and not as a fiduciary, and any duties be construed to limit the ability of the Placement Agent with respect or its affiliates to providing pursue, investigate, analyze, invest in, or engage in investment banking services to the Companybanking, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company financial advisory or any other person as to any legal, tax, investment, accounting business relationship with entities or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or persons other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Majesco Entertainment Co)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown under Company's effective registration statement on Form S-3 (File No. 333-196720) (the “Registration Statement (as defined Statement”) and the Warrants and Warrant Shares pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 2(a)(14(a)(2) hereof)thereof, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any loss, claim or damage incurred the fees and expenses set forth below:
(i) A cash fee equal to 6.25% of the gross proceeds received by the Placement Agent arising Company from or as a result the sale of such default by the CompanySecurities at the closing of the Offering (the “Closing”).
(eii) Concurrently The Company also agrees to reimburse Placement Agent’s actual expenses (with supporting invoices/receipts) up to a maximum of $100,000. If the execution Offering is not completed, the total of such reimbursable expenses shall be capped at $50,000 and delivery only as permitted to be reimbursed by FINRA Rule 5110(f)(2)(D). Excluding legal disbursements, any individual expense over $5,000 shall require the Company’s prior written preapproval.
(b) The term of the Placement Agent's exclusive engagement will be until December 31, 2015 (the “Exclusive Term”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rule 5110(f)(2)(D), will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent and Collateral Agentsor its Affiliates to pursue, LLCinvestigate, as escrow agent (the “Escrow Agent”)analyze, shall enter into an escrow agreement invest in, or engage in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”)investment banking, pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus financial advisory or any other business relationship with Persons (as defined below)) other than the Company. The aggregate As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such amounts is herein referred to terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Escrow FundsSecurities Act”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement).
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement Agreement, Rxxxxxx Jxxxx & Associates, Inc. shall be the Company’s exclusive placement agent (this in such capacity, the “Agreement”) between the Company and the Placement Agent”), the Placement Agent shall act as placement agent acting on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors Purchasers in a proposed takedown private placement exempt from registration under the Registration Statement Securities Act of 1933, as amended (as defined in the “Securities Act”), pursuant to Section 2(a)(14(a)(2) hereof)thereof, with the terms of the offering to be subject to market conditions and negotiations between among the Company, the Placement Agent and the prospective Investors Purchasers (such takedown offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors Purchasers in the Offering, on the Closing Date (as defined in subsection (dSection 1(c) of this Section 1hereof) of the Offering, the Company shall pay to the Placement Agent an amount in the aggregate equal to 76% of the gross proceeds received by the Company from the sale of the Securities Shares and Warrants (the “Placement Fee”). The Placement Agent will not receive any fees in connection with the exercise of the Warrants. The sale of the Securities shall be made pursuant to securities the purchase agreements agreement in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription AgreementsPurchase Agreement”) on the terms described on Exhibit B heretotherein. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter Oxxxxx Frome Wxxxxxx LLP, counsel for the Placement AgentCompany, located at The New York Times Building, 000 1000 Xxxxxx Xxxxx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 00000, promptly following the satisfaction of all conditions for Closing set forth in the Purchase Agreement (the “Closing Conditions”) or on such later date or at 10:00 a.m., local time, such different location as soon as practicable after the determination of the public offering price of the Securitiesparties shall agree in writing, but not prior to or later than on October 25the third Business Day (as defined herein) after, 2013 the date that the Closing Conditions have been satisfied or waived by the appropriate party (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares and Warrants which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares and Warrants shall have been delivered to the Investor Purchaser thereof against payment therefore therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver Securities the Shares and Warrants to an Investor a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company. “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (Securities. The Placement Agent shall act solely as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the ’s agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase the Securities and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at a closing (one or more closings. As compensation for services rendered, on the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the each Closing (each, a “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold pay to the Placement Agent harmless against any lossan amount equal to seven percent (7%) of the gross proceeds received by the Company from the sale of the Securities at each Closing of the Offering, claim payable at the Company’s option, in cash or damage incurred by additional shares of Common Stock and warrants having the same terms and conditions as the Shares and Warrants.
(b) The term of the Placement Agent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that either the Company or the Placement Agent arising from or as a result of such default by may terminate the engagement with respect to itself at any time upon 10 days written notice to the other parties. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company.
(e) Concurrently with ’s obligations contained in the execution and delivery indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof, will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent and Collateral Agentsor its Affiliates to pursue, LLCinvestigate, as escrow agent (the “Escrow Agent”)analyze, shall enter into an escrow agreement invest in, or engage in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”)investment banking, pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus financial advisory or any other business relationship with Persons (as defined below)) other than the Company. The aggregate As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such amounts is herein referred to terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Escrow FundsSecurities Act”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement).
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown Section 4(a)(2) under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities Act, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any lossthe fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the Closing of the Offering to Investors; provided, claim however, the Company shall not be required to pay such fee for the existing investors of the Company or damage incurred by the investors set forth on Schedule A attached hereto.
(ii) The Company agrees to pay to the Placement Agent arising from or as a result of such default by the Company$30,000 for non- accountable expenses.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement agreement (this the “Agreement”) between the Company and Jxxxxx Xxxxxx & Co., LLC (“Jxxxxx Xxxxxx”), Jxxxxx Xxxxxx shall be the Company’s non-exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a one or more proposed takedown under the takedowns from shelf Registration Statement No. 333-208910, or other registration statement(s) filed or to be filed to accomplish the takedowns (as defined in Section 2(a)(1) hereofcollectively the “Registration Statement”), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent Jxxxxx Xxxxxx and the prospective Investors (such each takedown shall be referred to herein as the an “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the any Offering, on the Closing Date (as defined in subsection (dbelow) of this Section 1) of the each Offering, the Company shall pay to the Placement Agent an amount in cash equal to 78% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Agent’s Fee”). The sale Company will pay the Placement Agent’s Fee by wire of immediately available funds to the Securities shall be made pursuant to securities purchase agreements instructions provided in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, immediately upon receipt of the “Subscription Agreements”) on proceeds of the terms described on Exhibit B heretoOffering at each Closing Date. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in any prospective Offering. The Company acknowledges that any advice given by Jxxxxx Xxxxxx to the OfferingCompany is solely for benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(cb) The Company acknowledges term of Jxxxxx Xxxxxx'x non-exclusive engagement will be six months; however, either party may terminate the engagement at any time upon 30 days’ written notice to the other party. Upon termination, Jxxxxx Xxxxxx will be entitled to collect all fees earned and agrees that expenses incurred through the date of termination, and the amounts described in the next sentence, if applicable. If Jxxxxx Xxxxxx 's non- exclusive engagement is terminated prior to the expiration of the six month period beginning on the date hereof ), any person to whom Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to introduced the Company, including the offering of the Securities contemplated hereby (including or with which we have discussions or negotiations about an investment in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legalduring the term of this Agreement, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of purchases securities from the Company, the transactions contemplated hereby or other matters relating Company agrees to pay to Placement Agent upon the closing of such transactions has transaction a cash fee in the amount that would otherwise have been and will be performed solely for the benefit of payable to the Placement Agent and has not been and had such transaction occurred during the term. The Placement Agent shall not be performed on behalf of provide the Company with a list of investors as described in this section within five (5) business days of termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of Jxxxxx Xxxxxx or its affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent business relationship with respect to any breach entitles or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later persons other than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Staffing 360 Solutions, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxx Capital Partners, LLC shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). The Placement Agent will conduct the Offering in accordance with applicable law and Nasdaq rules and regulations. As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its respective affiliates may, solely at their its discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its respective affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence. The Placement Agent acknowledges and agrees that the Company may continue to issue and sell the Company’s Common Stock through an at-the-market offering of the Company’s Common Stock under the Company’s distribution agreement with Wedbush Securities, Inc., as amended (the “ATM Offering”) and that (a) the ATM Offering will not be considered a breach of any of the terms or conditions of this Agreement and (b) no compensation will be payable to the Placement Agent under this Agreement with respect to sales made through the ATM Offering.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities of the Company (other than pursuant to the grant of options or restricted stock awards under the Company’s equity compensation plans or the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLPXxxxxxxxx Xxxxx, A Professional Corporation, counsel for the Placement Agent, located at The New York Times Building0000 Xxxxxxxx Xxxx., 000 Xxxxxx XxxXxxxx 0000, Xxx XxxxXxxxxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25April 21, 2013 2011 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with On or before the execution and delivery Closing Date, each Investor shall pay by wire transfer of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into immediately available funds to an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of previously specified by the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (xi) the number of Securities such Investor has agreed to purchase and (yii) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as ) (the “Escrow FundsPurchase Amount”). On the Closing Date, upon confirmation of the Escrow Agent will disburse receipt of the Escrow Funds to Purchase Amounts from the Company and the Placement Agent as provided in the Escrow Agreement and Investors, the Company shall (i) deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's ’s DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription AgreementAgreements and (ii) pay to the Placement Agent (A) the Placement Fee and (B) the out-of-pocket expense reimbursement to which the Placement Agent is entitled pursuant to Section 4 hereof.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement agreement (this the “Agreement”) between the Company and ThinkEquity, A Division of Fordham Financial Management Inc. (“ThinkEquity”), ThinkEquity shall be the Company’s non-exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a one or more proposed takedown under the takedowns from shelf Registration Statement No. 333-208910, or other registration statement(s) filed or to be filed to accomplish the takedowns (as defined in Section 2(a)(1) hereofcollectively the “Registration Statement”), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent ThinkEquity and the prospective Investors (such each takedown shall be referred to herein as the an “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the any Offering, on the Closing Date (as defined in subsection (dbelow) of this Section 1) of the each Offering, the Company shall pay to the Placement Agent an amount in cash equal to 78% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Agent’s Fee”). The sale Company will pay the Placement Agent’s Fee by wire of immediately available funds to the Securities shall be made pursuant to securities purchase agreements instructions provided in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, immediately upon receipt of the “Subscription Agreements”) on proceeds of the terms described on Exhibit B heretoOffering at each Closing Date. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in any prospective Offering. The Company acknowledges that any advice given by ThinkEquity to the OfferingCompany is solely for benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the any Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Staffing 360 Solutions, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding The sale of the foregoing, it is understood and agreed that Securities to any Purchaser will be evidenced by a securities purchase agreement (the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates“Purchase Agreement”) shall be fully disclosed to between the Company and approved such Purchaser in a form mutually agreed upon by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesInvestors. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the Capitalized terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Subject to the Placement Fee. The Company hereby waives terms and releasesconditions hereof, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at a one closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which the Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid forAs compensation for services rendered, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds Company shall pay to the Company and the Placement Agent as the fees and expenses set forth below:
(i) A cash fee equal to 6% of the gross proceeds received by the Company from the sale of the Securities at the Closing .
(ii) As provided in Section 6, the Escrow Agreement Company also agrees to reimburse Placement Agent’s expenses up to a maximum of $50,000, payable at the Closing.
(b) The term of the Placement Agent's exclusive engagement will begin on the date hereof and end on the earlier of the consummation of the Offering or 30 days after the receipt by either party hereto of written notice of termination, except in the case of termination by the Company for cause. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company shall deliver Company’s obligations contained in the indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof, will survive any expiration or termination of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Samples: Securities Purchase Agreement (SPI Energy Co., Ltd.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) ), between the Company and you, X.X. Xxxxxx Securities LLC, shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent acting on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under offering pursuant to the Registration Statement (as defined in Section 2(a)(1) hereof)Statement, with the terms of the offering to be subject to market conditions and negotiations between among the Company, the Placement Agent and the prospective Investors (such takedown offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (dSection 1(c) of this Section 1hereof) of the Offering, the Company shall pay to the Placement Agent an amount in the aggregate equal to 76% of the gross proceeds received by the Company from the sale of the Securities on the Closing Date (the “Placement Fee”). The sale of the Securities shall be made pursuant to the Registration Statement. The Company will enter into a securities purchase agreements agreement with the Investor in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription AgreementsSecurities Purchase Agreement”) on the terms set forth in the General Disclosure Package and the Prospectus and as described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter Xxxxxxxx & Xxxxxxxx LLP, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx XxxXxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 Xxx Xxxx, at 10:00 a.m., local New York City time, on or before July 12, 2016 or at such time on such other date as soon as practicable after may be agreed upon in writing by the determination of Placement Agent and the public offering price of the Securities, but not later than on October 25, 2013 Company (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Shares and Warrants which the Company has agreed to sell pursuant to this Agreement , the Securities Purchase Agreement and the Subscription Agreements Warrants shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Shares and Warrants shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities the Shares and Warrants to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(ed) Concurrently with On the execution and delivery of this AgreementClosing Date, (i) the Company shall deliver, or cause to be delivered, the CompanySecurities to the Investors, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors shall deliver, or cause to settle be delivered, the purchase price for their purchase respective Securities to the Company pursuant to the terms of the Securities Purchase Agreement, “delivery versus payment” through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of Company and (xii) the number of Securities such Investor has agreed Company will wire the amounts owed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription this Agreement.
(fe) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement Agreement, Rxxxxxx Jxxxx & Associates, Inc. shall be the Company’s exclusive placement agent (this in such capacity, the “Agreement”) between the Company and the Placement Agent”), the Placement Agent shall act as placement agent acting on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities Preferred Shares to the Investors Purchasers in a proposed takedown private placement exempt from registration under the Registration Statement Securities Act of 1933, as amended (as defined in the “Securities Act”), pursuant to Section 2(a)(14(a)(2) hereof)thereof, with the terms of the offering to be subject to market conditions and negotiations between among the Company, the Placement Agent and the prospective Investors Purchasers (such takedown offering shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities Preferred Shares are sold to Investors Purchasers in the Offering, on the Closing Date (as defined in subsection (dSection 1(c) of this Section 1hereof) of the Offering, the Company shall pay to the Placement Agent an amount in the aggregate equal to 73.4074% of the gross proceeds received by the Company from the sale of the Securities Preferred Shares (the “Placement Fee”). Except for the Placement Fee in connection with the sale of the Preferred Shares, the Placement Agent will not receive any fees in connection with the issuance, conversion or exercise of any of the Securities. The sale of the Securities Preferred Shares shall be made pursuant to a securities purchase agreements agreement in the form included as Exhibit A A-2 hereto (each, a “Subscription Agreement” and collectively, the “Subscription AgreementsPurchase Agreement”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities Preferred Shares and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the SecuritiesPreferred Shares, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesPreferred Shares. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase Securities (other than pursuant to the exercise of options or warrants to purchase shares of Common Stock that are outstanding at the date hereof) Preferred Shares otherwise than through the Placement Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities Preferred Shares shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter Mxxxxx, Xxxxx & Bxxxxxx LLP, counsel for the Placement AgentCompany, located at The New York Times BuildingOxx Xxxxxxx Xxxxxx, 000 Xxxxxx XxxXxxxxx, Xxx XxxxXxxxxxxxxxxxx 00000, XX 00000 promptly following the satisfaction of all conditions for Closing set forth in the Purchase Agreement (the “Closing Conditions”) or on such later date or at 10:00 a.m., local time, such different location as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 parties shall agree in writing (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities Preferred Shares which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Preferred Shares shall have been delivered to the Investor Purchaser thereof against payment therefore therefor by such InvestorPurchaser. If the Company shall default in its obligations to deliver Securities the Preferred Shares to an Investor a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company. “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Leap Therapeutics, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown Section 4(a)(2) under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities Act, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against the fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the Closing of the Offering to Investors.
(ii) A cash fee equal to 8% of the gross proceeds received by the Company from any lossexercise of the Class C Warrants
(i) The Company hereby agrees to issue to the Placement Agent (and/or its designees)on the Closing Date, claim or damage incurred upon payment of $100.00 by the Placement Agent arising from on the Closing Date, warrants (“Placement Agent’s Warrants”) to purchase that number of shares of Common Stock equal to 8% of the aggregate number of Conversion Shares placed in the Offering. The Placement Agent’s Warrant agreement shall be exercisable, in whole or in part, commencing on the final Closing Date and shall be exercisable for a period of five years. The Placement Agent’s Warrant shall be exercisable on a cashless basis. The Exercise price of the warrant shall be the same as a result the Conversion Price of such default the Investor’s Note. The PlacementAgent’s Warrant Agreement and the shares of Common Stock issuable upon exercise thereof (the “PA Warrant Shares”) are hereinafter referred to together as the “Placement Agent’s Securities.”
(ii) The Company hereby agrees to issue to the Placement Agent (and/or its designees) , upon payment of $100 by the CompanyPlacement Agent, warrants (“Placement Agent’s Warrants”) to purchase that number of shares of Common Stock equal to 8% of the aggregate number of Warrant Shares that are exercised. The Placement Agent’s Warrant agreement shall be exercisable, for a period of five years. The Placement Agent’s Warrant shall be exercisable on a cashless basis . The Exercise price of the Placement Agent Warrants shall be the same as the Exercise price of the Investor’s Warrants. The Placement Agent’s Warrant Agreement and the shares ofCommon Stock issuable upon exercise thereof (the “PA Warrant Shares”) are hereinafter referred to together as the “Placement Agent’s Securities.”
(eiii) Concurrently The term of the Placement Agent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon fifteen (15) days written notice to the execution other parties (provided that no such notice may be given until January 31, 2022 except in the case of termination for cause). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and delivery contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rules, will survive any expirationor termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent and Collateral Agentsor its Affiliates to pursue, LLCinvestigate, as escrow agent (the “Escrow Agent”)analyze, shall enter into an escrow agreement invest in, or engage in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”)investment banking, pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus financial advisory or any other business relationship with Persons (as defined below)herein) other than the Company. The aggregate As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (oran agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company terms are used in and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered construed under Rule 405 under the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription AgreementAct.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as be the exclusive placement agent on a commercially reasonable efforts basis, in connection with the issuance offering and sale by the Company of the Securities Shares and Pre-Funded Warrants pursuant to the Investors in a proposed takedown under Company’s registration statement on Form S-3 (File No. 333-263705) (including the exhibits thereto filed at such time, and as may be amended from time to time, the “Registration Statement Statement”) (as defined in Section 2(a)(1such offering, the “Registered Offering” or the “Offering”) hereof), with the terms of the offering Offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPapplicable date on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All As compensation for services rendered in connection with the completion of each Closing, on each such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any loss, claim or damage incurred the fees and expenses set forth below:
(i) A cash fee equal to 7.75% of the gross proceeds received by the Placement Agent arising Company from or as a result the sale of the Securities in each such default by the CompanyClosing.
(eii) Concurrently The Company also agrees to reimburse Placement Agent’s expenses up to an aggregate of $95,000 (with supporting invoices or receipts), which shall be payable immediately upon (but only in the execution event of) the first Closing of the Offering, provided that such expense cap in no way limits or impairs the indemnification and delivery contribution provisions contained in section 7 of this Agreement.
(iii) Such number of Common Stock purchase warrants (the “Placement Agent Warrants”) to Placement Agent or its designees at each Closing to purchase shares of Common Stock equal to 6.0% of the aggregate number of Shares and Pre-Funded Warrants sold in such Closing. The Placement Agent Warrants shall have substantially the same terms as the Pre-Funded Warrants issued to the Investors in the Offering except that the exercise price shall be $1.05 per share, will have an expiration date of 5 years from the date of this Agreement, the Company, and will be unregistered.
(b) The term of the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) ’s exclusive engagement will be established for the benefit as provided in Section 2 of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closingthat certain Investment Banking Agreement dated August 9, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to 2023 between the Company and the Placement Agent as provided (the “August 2023 Investment Banking Agreement”); provided, however, that the Company and Placement Agent hereby agree that fees payable by the Company to Placement Agent herein under Section 1(a)(i) – 1(a)(iii) shall supersede any fees or expenses of any kind payable by the Company in the Escrow Agreement August 2023 Investment Banking Agreement. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company shall deliver Company’s obligations contained in the indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery of the Warrants Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be made by mail to the Investors to the addresses set forth on the applicable Subscription reimbursed under FINRA Rule 5110(f)(2)(D)(i), will survive any expiration or termination of this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities pursuant to the Investors in a proposed takedown Section 4(a)(2) under the Registration Statement (as defined in Section 2(a)(1) hereof)Securities Act, with the terms of such offering (the offering “Offering”) to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a closing (the “Closing”) at ” and the offices of Xxxxxxx Procter LLPdate on which each Closing occurs, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the a “Closing Date”). All such actions taken at the As compensation for services rendered, on each Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has acceptedDate, the Company shall indemnify and hold pay to the Placement Agent harmless against any lossthe fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the Closing of the Offering to Investors.
(ii) The Company also agrees to pay to the Placement Agent $25,000 for out-of-pocket expenses, claim or damage incurred including the reasonable fees and expenses of Placement Agent’s counsel and due diligence analysis; provided, however, that in the event that the Offering is terminated, the Company agrees to reimburse the Placement Agent pursuant to Section 6 hereof.
(b) The Company hereby agrees to issue to the Placement Agent (and/or its designees) on the Closing Date, upon payment of $100.00 by the Placement Agent arising from on the Closing Date, warrants (“Placement Agent’s Warrants”) to purchase that number of shares of Common Stock equal to 5% of the aggregate number of Conversion Shares placed in the Offering. The Placement Agent’s Warrant agreement shall be exercisable, in whole or as in part, commencing on the six (6) month anniversary of the issuance date and shall be exercisable for a result period of such default by five years. In the Company.
(e) Concurrently with event that there is not an effective registration statement permitting for the execution and delivery resale of this Agreement, the Companyshares underlying the Placement Agent’s Warrants, the Placement Agent Warrant’s shall be exercisable on a cashless basis. The Placement Agent’s Warrant Agreement and Collateral Agents, LLC, as escrow agent the shares of Common Stock issuable upon exercise thereof (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow AccountPA Warrant Shares”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein are hereinafter referred to together as the “Escrow Funds”. On Placement Agent’s Securities.” The Placement Agent agrees that it will not sell, transfer, assign, pledge or hypothecate the Placement Agent’s Warrant Agreement, or any portion thereof, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for a period of one hundred eighty (180) days following the Closing DateDate to anyone other than (i) a selected dealer in connection with the Offering, the Escrow Agent will disburse the Escrow Funds to the Company and or (ii) a bona fide officer or partner of the Placement Agent as provided or selected dealer; and only if any such transferee agrees to the foregoing lock-up restrictions. Delivery of the Placement Agent’s Warrant Agreement shall be made on the Closing Date and shall be issued in the Escrow Agreement and the Company shall deliver name or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such authorized denominations as the Placement Agent shall request by may request.
(c) The term of the Placement Agent’s exclusive engagement will be until the completion of the Offering (the “Exclusive Term”); provided, however, that a party hereto may terminate the engagement with respect to itself at any time upon fifteen (15) days written notice to the other parties (provided that no such notice may be given until September 30, 2022 except in the case of termination for cause). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the indemnification provisions will survive any expiration or termination of this Agreement, and the Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof and which are permitted to be reimbursed under FINRA Rules, will survive any expiration or termination of this Agreement. Nothing in this Agreement shall be construed to limit the ability of the Placement Agent or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined herein) other than the Company. As used herein (i) “Persons” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
Appears in 1 contract
Samples: Placement Agency Agreement (Wisa Technologies, Inc.)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Xxxx Capital, Xxxx Capital shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent Xxxx Capital and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount (the “Placement Fee”) equal to (i) 7% of the gross proceeds received by the Company from the sale of the Securities minus (the “Placement Fee”)ii) $25,000. The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their its discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing DateDate (as defined below), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Securities of the Company (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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxxxxx Xxxxxxx Procter LLPP.C., counsel for the Placement Agent, located at The New York Times Building00 Xxxxxxxxxx Xxxxxx, 000 Xxxxxx XxxRoseland, Xxx Xxxx, XX 00000 NJ 07068 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 2512, 2013 2009 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with On or before the execution and delivery Closing Date, each Investor shall pay by wire transfer of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into immediately available funds to an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of specified by the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as ) (the “Escrow FundsPurchase Amount”). On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall (i) deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's ’s DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement, and (ii)_ pay to the Placement Agent (A) the Placement Fee as directed by the Placement Agent and (B) the expense reimbursement to which the Placement Agent is entitled pursuant to Section 4 hereof.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Samples: Placement Agency Agreement (Pluristem Therapeutics Inc)
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereof), with the terms of the offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, the Company shall pay to the Placement Agent an amount equal to 76% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Lxxxxxxxxx Xxxxxxx Procter LLPPC, counsel for the Placement Agent, located at The New York Times Building60 Xxxxxxxxxx Xxxxxx, 000 Xxxxxx XxxRoseland, Xxx Xxxx, XX 00000 NJ 07068 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25July 28, 2013 2010 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to the Company and the Placement Agent as provided in the Escrow Agreement and the Company shall deliver or cause to be delivered the Securities to the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and you, Xxxx shall be the Company’s exclusive placement agent (in such capacity, the “Placement Agent”), the Placement Agent shall act as placement agent on a commercially reasonable best efforts basis, in connection with the issuance and sale by the Company of the Securities to the Investors in a proposed takedown under the Registration Statement (as defined in Section 2(a)(1) hereofbelow), with the terms of the each offering to be subject to market conditions and negotiations between the Company, the Placement Agent and the prospective Investors (such takedown shall be referred to herein as the “Offering”). As compensation for services rendered, and provided that any of the Securities are sold to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1below) of the Offering, the Company shall pay to the Placement Agent an amount equal to 77.0% of the gross proceeds received by the Company from the sale of the Securities to all Investors (the “Placement Fee”) plus reimbursable costs and expenses of the Placement Agent pursuant to Section 4. The Placement Fee shall be payable to the Placement Agent at Closing, based upon the sale of the Shares, as provided in the Subscription Agreements (defined below). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its their respective affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its their respective affiliates) shall be fully disclosed to the Company and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securities, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the SecuritiesCompany. The Placement Agent shall act on a commercially reasonable best efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party heretothe other. Additionally, the Placement Agent has not advised, nor is it advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment of the purchase price for, and delivery of, the Securities shall be made at a closing (the “Closing”) at the offices of Xxxxxxx Procter LLPLeClairRyan, A Professional Corporation, counsel for the Placement Agent, located at The New York Times Building, 000 Xxxxxx XxxXxxxx Xxxxxx, Xxx Xxxx, XX 00000 Xxx Xxxx, at 10:00 a.m.[ ], local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25[ ], 2013 except as otherwise agreed upon by the Company and the Placement Agent (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore therefor by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established for the benefit of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closing, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, (i) the Escrow Agent Investors will disburse wire the Escrow Funds purchase price for their respective Securities through their delivery versus payment (“DVP”) account set up at Xxxx as executing broker. Xxxx will use its Syndicate account as a facilitation account to the Company and the Placement Agent as provided in the Escrow Agreement and the settle Investors purchases. The Company shall deliver or cause to be delivered the Securities to Xxxx on behalf of the Investors, with the delivery of the Shares to be made, if possible, through the facilities of The Depository Trust Company's ’s DWAC system, and the delivery of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription Agreement. Upon confirmation of the Shares by Xxxx on behalf of the Investors, Xxxx will instruct its clearing firm to release the wire to the Company. This will all occur during a closing call scheduled to settle the transaction.
(f) The Securities shall be registered in such names and in such denominations as the Placement Agent shall request by written notice to the Company.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Placement Agency Agreement (this “Agreement”) between the Company and the Placement Agent, the Placement Agent shall act as placement agent on a commercially reasonable efforts basis, be the exclusive Placement Agent in connection with the issuance offering and sale by the Company of the Securities Shares pursuant to the Investors in Company’s registration statement on Form S-3 (File No. 333-217051) (the “Registration Statement”) (such offering, the “Public Offering”), together with a proposed takedown under concurrent private placement of the Registration Statement (as defined in Section 2(a)(1) hereof)Warrants to Qualified Institutional Buyers and a limited number of institutional accredited investors, with the terms of such offering (such private placement, the offering “Private Placement” and, together with the Public Offering, the “Offering”) to be subject to market conditions and negotiations between the CompanyCompany and the prospective Investors. The Placement Agent will act on a reasonable best efforts basis and the Company agrees and acknowledges that there is no guarantee of the successful placement of the Securities, or any portion thereof, in the prospective Offering. Under no circumstances will the Placement Agent and the prospective Investors or any of its “Affiliates” (such takedown shall as defined below) be referred obligated to herein as the “Offering”). As compensation for services rendered, and provided that underwrite or purchase any of the Securities are sold for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s agent and not as principal. The Placement Agent shall have no authority to Investors in the Offering, on the Closing Date (as defined in subsection (d) of this Section 1) of the Offering, bind the Company shall pay with respect to any prospective offer to purchase Securities and the Placement Agent an amount equal to 7% of the gross proceeds received by the Company from the sale of the Securities (the “Placement Fee”). The sale of the Securities shall be made pursuant to securities purchase agreements in the form included as Exhibit A hereto (each, a “Subscription Agreement” and collectively, the “Subscription Agreements”) on the terms described on Exhibit B hereto. The Company shall have the sole right to accept offers to purchase the Securities and may reject any such offer offer, in whole or in part. Notwithstanding the foregoing, it is understood and agreed that the Placement Agent or any of its affiliates may, solely at their discretion and without any obligation to do so, purchase Securities as principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed Subject to the Company terms and approved by the Company in accordance with the previous sentence.
(b) This Agreement shall not give rise to any commitment by the Placement Agent to purchase any of the Securitiesconditions hereof, and the Placement Agent shall have no authority to bind the Company to accept offers to purchase the Securities. The Placement Agent shall act on a commercially reasonable efforts basis and does not guarantee that it will be able to raise new capital in the Offering. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out of the Placement Fee. 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 the Placement Agent, solicit or accept offers to purchase 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 Agent in accordance herewith.
(c) The Company acknowledges and agrees that the Placement Agent shall act as an independent contractor, and not as a fiduciary, and any duties of the Placement Agent with respect to providing investment banking services to the Company, including the offering of the Securities contemplated hereby (including in connection with determining the terms of the Offering), shall be contractual in nature, as expressly set forth herein, and shall be owed solely to the Company. Each party hereto disclaims any intention to impose any fiduciary or similar duty on any other party hereto. Additionally, the Placement Agent has not advised, nor is advising, the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Placement Agent shall have no responsibility or liability to the Company with respect thereto. Any review by the Placement Agent of the Company, the transactions contemplated hereby or other matters relating to such transactions has been and will be performed solely for the benefit of the Placement Agent and has not been and shall not be performed on behalf of the Company or any other person. It is understood that the Placement Agent has not and will not be rendering an opinion to the Company as to the fairness of the terms of the Offering. Notwithstanding anything in this Agreement to the contrary, the Company acknowledges that the Placement Agent may have financial interests in the success of the Offering contemplated hereby that are not limited to the Placement Fee. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Placement Agent with respect to any breach or alleged breach of fiduciary duty.
(d) Payment payment of the purchase price for, and delivery of, the Securities shall be made at one or more closings (each a “Closing” and the date on which each Closing occurs, a “Closing Date”). As compensation for services rendered, on each Closing Date, the Company shall pay to the Placement Agent the fees and expenses set forth below:
(i) A cash fee equal to 8% of the gross proceeds received by the Company from the sale of the Securities at the closing of the Offering (the “Closing”) at (reduced to 3% with respect to the offices investors listed on Annex A hereto).
(ii) The Company also agrees to reimburse Ladenburg’s expenses up to $30,000 without the Company’s consent (provided, however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of Xxxxxxx Procter LLP, counsel for this Agreement). Such reimbursement shall be payable immediately upon (but only in the event of) a Closing of the Offering.
(b) The term of the Placement Agent, located at The New York Times Building, 000 Xxxxxx Xxx, Xxx Xxxx, XX 00000 at 10:00 a.m., local time, as soon as practicable after the determination of the public offering price of the Securities, but not later than on October 25, 2013 (such date of payment and delivery being herein called the “Closing Date”). All such actions taken at the Closing shall be deemed to have occurred simultaneously. No Securities which the Company has agreed to sell pursuant to this Agreement and the Subscription Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Investor thereof against payment therefore by such Investor. If the Company shall default in its obligations to deliver Securities to an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim or damage incurred by the Placement Agent arising from or as a result of such default by the Company.
(e) Concurrently with the execution and delivery of this Agreement, the Company, the Placement Agent and Collateral Agents, LLC, as escrow agent (the “Escrow Agent”), shall enter into an escrow agreement in substantially the form of Exhibit C attached hereto (the “Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) ’s exclusive engagement will be established for the benefit as provided in Section 2 of the Company and the Investors to settle their purchase through the facilities of The Depository Trust Company’s DWAC system. Prior to the Closingthat certain Investment Banking Agreement dated June 19, each such Investor shall deposit into the Escrow Account an amount equal to the product of (x) the number of Securities such Investor has agreed to purchase and (y) the purchase price per unit as set forth on the cover page of the Prospectus (as defined below). The aggregate of such amounts is herein referred to as the “Escrow Funds”. On the Closing Date, the Escrow Agent will disburse the Escrow Funds to 2017 between the Company and the Placement Agent as provided (the “Investment Banking Agreement”). Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the Escrow Agreement and the Company shall deliver indemnification provisions will survive any expiration or cause to be delivered the Securities to the Investors, with the delivery termination of the Shares to be made, if possible, through the facilities of The Depository Trust Company's DWAC systemthis Agreement, and the delivery Company’s obligation to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section 1 hereof, will survive any expiration or termination of the Warrants to be made by mail to the Investors to the addresses set forth on the applicable Subscription this Agreement.
(f) The Securities . Nothing in this Agreement shall be registered in such names and in such denominations as construed to limit the ability of the Placement Agent shall request by written notice or its Affiliates to pursue, investigate, analyze, invest in, or engage in investment banking, financial advisory or any other business relationship with Persons (as defined below) other than the Company. As used herein (i) “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind and (ii) “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 1 contract
Samples: Placement Agency Agreement (Yield10 Bioscience, Inc.)
