Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Company hereby authorizes the Placement Agent to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offering of the Securities (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”). (b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth herein. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities, the Placement Agent shall act solely as the Company’s agent and not as principal. (c) Subject to the provisions of this Section 1, offers for the purchase of the Securities may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. 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 Securities and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement. (d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Company. (e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities on such Closing Date. 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. (f) No Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein. (g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offering of the Securities (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth herein. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities, the Placement Agent shall act solely as the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. 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 Securities and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share and accompanying Warrant are is being sold to the Purchasers at a price of $5.28_____ and each Pre-Funded Warrant is being sold to the Purchasers at a price of $_____. The purchases of Securities by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six seven and one half percent (6.07.5%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities on such Closing Date. 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.
(f) The Company also agrees to reimburse Placement Agent’s fees and expenses of legal counsel and other out-of-pocket expenses of [$75,000] payable immediately upon the Closing of the Offering.
(g) No Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(gh) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. [ ] (Eastern Time) on October 7[ ], 2024 (the “Closing Date”) at the office of Winston & Sxxxxx Lucosky Bxxxxxxx LLP, 800 Xxxxxxx Xx.100 Xxxx Xxxxxx Xxxxx, XXX 00000xx Xxxxx, XxxxxxxXxxxxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, representations and warranties and agreements contained in, of the Company and subject to the terms and conditions of, set forth in this Agreement:
(a) The , the Company hereby authorizes engages the Placement Agent Agent, on a reasonable efforts basis, to act as its exclusive placement agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offer and sale, by the Company, of Shares to the Investors. The Shares are being sold to Investors at a price of $4.75 per share. The Placement Agent may retain other brokers or dealers to act as sub-agents on their respective behalf in connection with the offering and sale of the Securities (the “Offering”)Shares. Until the earlier of the Closing Date (as defined belowin Section 2 hereof) or earlier upon the termination of this Agreement pursuant to Section 7Agreement, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby expressly acknowledges and agrees that: (i) the Placement Agent’s obligations hereunder are on a reasonable efforts basis, and this Agreement shall not give rise to any commitment by such Placement Agent or any of its affiliates to underwrite or purchase any of the Shares or otherwise provide any financing, (ii) the Placement Agent’s responsibility to the Company is solely contractual in nature, such Placement Agent has been retained solely to act as Placement Agent in connection with the sale of the Shares and no fiduciary, advisory or agency relationship between the Company and such Placement Agent has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether such Placement Agent has advised or is advising the Company on other matters; (iii) the price of the Shares set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the purchasers thereof, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; (iv) it has been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Placement Agent has agreedno obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, as agent advisory or agency relationship; and (v) it waives, to the fullest extent permitted by law, any claims it may have against the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Placement Agent shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, to use its reasonable “best efforts” to solicit offers to purchase including shareholders, employees or creditors of the Securities from the Company on the terms and subject to the conditions set forth hereinCompany. The Placement Agent shall use have no authority to bind the Company in respect of the sale of any Shares. The sale of the Shares shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Subscription Agreements”).
(c) The Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser Investor whose offer to purchase Securities Shares has been solicited by the such Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser Investor or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares for its own account accounts and, in soliciting purchases of the SecuritiesShares, the Placement Agent shall act solely as the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Shares as a principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company (including the identity of such Investors) and approved by the Company in accordance with Section 1(d).
(cd) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities Shares and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice subject to prior consultation with the Company, to reject any offer to purchase Securities Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(de) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities Shares by the Purchasers Investors shall be evidenced by the execution of Purchase Agreement the Subscription Agreements by each of the Purchasers and parties thereto in the Company.form attached hereto as Exhibit A.
(ef) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof)Date, the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) based on a certain percentage of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Shares on such Closing DateDate as set forth on Annex I hereto (the “Agency Fee”). The Placement Agent may retain other brokers or dealers agrees that the foregoing compensation, together with any expense reimbursement payable hereunder, constitutes all of the compensation that the Placement Agent shall be entitled to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by the Placement FeeAgent from the Company in connection with the offering contemplated hereby.
(fg) No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement 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 Purchaser Investor thereof against payment by such PurchaserInvestor. If the Company shall default in its obligations to deliver Securities Shares to a Purchaser an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, claim or damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) hereinCompany.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Samples: Placement Agency Agreement (Progen Pharmaceuticals LTD)
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements of the Company herein contained in, and subject to all the terms and conditions ofof this Placement Agency Agreement (this “Agreement”), this Agreement:
(a) The the Company hereby authorizes appoints the Placement Agent and the Placement Agent agrees to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities from the Company Company’s placement agent, on a best efforts basis, in connection with the proposed offering issuance and sale by the Company of the Offered Securities (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth hereinInvestors. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser Investor whose offer to purchase Offered Securities has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event if any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities, the Placement Agent shall act solely as the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. 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 Offered Securities and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) 5.6762% of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Offered Securities, if any, actually sold as set forth on such Closing Datethe cover page of the Prospectus (as hereinafter defined) upon the closing of the transactions contemplated hereby. The Placement Agent Agent, without the prior consent of the Company, may retain other brokers appoint any co-agents or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out issuance and sale of the Placement Fee.
(f) No Offered Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against may allocate any loss, claim, damage or expense arising from or as a result portion of such default fee to such co-agents or sub-agents except as may otherwise be agreed by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agreeAgent.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive sole agent to solicit offers for the purchase of all or part of the Securities Units from the Company in connection with the proposed offering of the Securities Units (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to in Section 73 hereof), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Units otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its commercially reasonable “best efforts” efforts to solicit offers to purchase the Securities Units from the Company on the terms and subject to the conditions set forth hereinin the Prospectus (as defined below). The Placement Agent shall use commercially reasonable best efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities the Units has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Units for its own account and, in soliciting purchases of the SecuritiesUnits, the Placement Agent shall act solely as the Company’s agent and not as principal. Notwithstanding the foregoing and except as otherwise provided in Section 2(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Units as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Units may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Units received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities the Units and may reject any such offer, in whole or in part. The Subject to the provisions of this Section 1(c), the Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Units received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(d) Each Share and accompanying Warrant The Units are being sold to the Purchasers at a price of $5.28. The purchases of Securities by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities on such Closing Date. 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.
(f) No Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.1.45
Appears in 1 contract
Samples: Placement Agency Agreement (Quicklogic Corporation)
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company and the Selling Shareholders herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company and the Selling Shareholders hereby authorizes the Placement Agent authorize Oppenheimer to act as its the exclusive agent for the Selling Sharehxxxxxx (in such capacity, the "Placement Agent") to solicit offers for the purchase of all or part of the Securities Stock from the Company Selling Shareholders in connection with the proposed offering of the Securities Stock (the “"Offering”"). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7Date, the Company and the Selling Shareholders shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Stock otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreedagrees, as agent of the CompanySelling Shareholders, to use its reasonable “best efforts” efforts to solicit offers to purchase the Securities Stock from the Company Selling Shareholders on the terms and subject to the conditions set forth hereinin the Base Prospectus (as defined below) and the Prospectus Supplement (as defined below). The Placement Agent shall use make commercially reasonable efforts to assist the Company Selling Shareholders in obtaining performance by each Purchaser whose offer to purchase Securities Stock has been solicited by the Placement Agent and accepted by the CompanySelling Shareholders, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company or the Selling Shareholders in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Stock for its own account and, in soliciting purchases of the SecuritiesStock, the Placement Agent shall act solely as the Company’s agent of the Selling Shareholders and not as principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Stock as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Stock may be solicited by the Placement Agent as agent for the Company Selling Shareholders at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the CompanySelling Shareholders, orally or in writing, each reasonable offer to purchase Securities Stock received by it as agent of the CompanySelling Shareholders. The Company Selling Shareholders shall have the sole right to accept offers to purchase Securities the Stock and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the CompanySelling Shareholders, to reject any offer to purchase Securities Stock received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities the Stock by the Purchasers shall be evidenced by the execution of the Purchase Agreement by each of the Purchasers and the Companyparties thereto.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company below) each Selling Shareholder shall pay or cause to be paid to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company (the “Placement Fee”) such Selling Shareholder from the sale of the Securities Stock on such Closing Date. 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.
(f) No Securities Stock which the Company has any Selling Shareholder shall have agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Companysuch Selling Shareholder, until such Securities Stock shall have been delivered to the Purchaser thereof against payment therefor by such Purchaser. If the Company any Selling Shareholder shall default in its obligations obligation to deliver Securities Stock to a Purchaser whose offer it has been accepted, the Company such Selling Shareholder shall indemnify and hold the Placement Agent harmless against any loss, claim, claim or damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) hereinsuch Selling Shareholder.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
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 in, and subject to all of the terms and conditions of, of this Agreement:
(a) The , the Company hereby authorizes engages the Placement Agent to act as its exclusive placement agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offering issuance and sale of the Securities Shares and the Placement Agent hereby agrees, as an agent of the Company, to use its commercially reasonable efforts to solicit offers to purchase the Shares upon the terms and conditions set forth in the Prospectus (the “Offering”as defined below). Until Prior to the earlier of (i) the date on which this Agreement is terminated and (ii) the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase Common Stock (other than pursuant to the Securities exercise of options or warrants to purchase shares of Common Stock that are outstanding as of the date hereof) otherwise than through the Placement Agent, except Agent in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”)accordance herewith.
(b) The As compensation for the services rendered hereunder, on the Closing Date (as defined below), the Company hereby acknowledges that shall pay to the Placement Agent has agreedAgent, as agent by wire transfer of immediately available U.S. funds payable to the order of the CompanyPlacement Agent, to use its reasonable “best efforts” an account or accounts designated by the Placement Agent, an amount equal to solicit offers to purchase 6% of the Securities gross proceeds received by the Company from the Company on sale of the terms and subject to Shares (the conditions set forth herein“Fee”). The Placement Agent may, in its discretion, retain other brokers or dealers to act as sub-agents on the Placement Agent’s behalf in connection with the offering of the Shares.
(c) This Agreement shall use commercially reasonable efforts not give rise to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities has been solicited a commitment by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity or any of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated its affiliates to underwrite or purchase any Securities for its own account and, in soliciting purchases of the SecuritiesShares or otherwise provide any financing, and the Placement Agent shall act solely as have no authority to bind the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase Company in respect of the Securities may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities received by it as agent sale of the Companyany Shares. The Company shall have the sole right to accept offers to purchase Securities the Shares and may reject any such offer, offer in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28its agreement contained herein. The purchases sale of Securities by the Purchasers Shares shall be evidenced by made pursuant to purchase agreements in the execution of Purchase Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (form attached hereto as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company Exhibit A (the “Placement FeePurchase Agreements”) from the sale of the Securities on such Closing Date. 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).
(f) No Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Samples: Placement Agency Agreement (Superconductor Technologies Inc)
Agreement to Act as Placement Agent. (a) On the basis of the representations, representations and warranties and agreements contained in, of the Company and subject to the terms and conditions of, set forth in this Agreement:
(a) The , the Company hereby authorizes engages the Placement Agent Agents, on a reasonable efforts basis, to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities from the Company Placement Agents in connection with the proposed offer and sale, by the Company, of Shares to the Investors. The Shares are being sold to Investors at a price of $1.50 per share. The Placement Agents may retain other brokers or dealers to act as sub-agents on their behalf in connection with the offering and sale of the Securities (the “Offering”)Shares. Until the earlier of the Closing Date (as defined belowin Section 2 hereof) or earlier upon the termination of this Agreement pursuant to Section 7Agreement, the Company shall not, without the prior written consent of the Placement AgentAgents, solicit or accept offers to purchase the Securities Shares otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”)Agents.
(b) The Company hereby expressly acknowledges and agrees that the Placement Agent has agreedAgents’ obligations hereunder are on a reasonable efforts basis, as agent and this Agreement shall not give rise to any commitment by the Placement Agents or any of their respective affiliates to underwrite or purchase any of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth hereinShares or otherwise provide any financing. The Placement Agent Agents shall use have no authority to bind the Company in respect of the sale of any Shares. The sale of the Shares shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Subscription Agreements”).
(c) The Placement Agents shall make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser Investor whose offer to purchase Securities Shares has been solicited by the Placement Agent Agents and accepted by the Company, but the Placement Agent Agents shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser Investor or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent Agents be obligated to underwrite or purchase any Securities Shares for its own account accounts and, in soliciting purchases of the SecuritiesShares, the Placement Agent Agents shall act solely as the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agents (or their respective affiliates) may, solely at their discretion and without any obligation to do so, purchase Shares as principals; provided, however, that any such purchases by the Placement Agents (or their respective affiliates) shall be fully disclosed to the Company (including the identity of such Investors) and approved by the Company in accordance with Section 1(d).
(cd) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares may be solicited by the Placement Agent Agents as agent for the Company at such times and in such amounts as the Placement Agent deems Agents deem advisable. The Placement Agent Agents shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by it them as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities Shares and may reject any such offer, in whole or in part. The Placement Agent Agents shall have the right, in its their discretion reasonably exercised, without subject to providing prior notice to the Company, to reject any offer to purchase Securities Shares received by itthem, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(de) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities Shares by the Purchasers Investors shall be evidenced by the execution of Purchase Agreement the Subscription Agreements by each of the Purchasers and parties thereto in the Company.form attached hereto as Exhibit A.
(ef) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof)Date, the Company shall pay to the Placement Agent Agents by wire transfer of immediately available funds to an account or accounts designated by the Placement AgentAgents, an aggregate amount equal to six the sum of (i) seven and one quarter percent (6.07.25%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of Shares up to $10 million plus (ii) seven percent (7%) of the Securities gross proceeds received by the Company from the sale of Shares on $10 million to $15 million plus (iii) six and three quarters percent (6.75%) of the gross proceeds received by the Company from the sale of Shares on $15-20 million plus (iv) six and one half percent (6.5%) of the gross proceeds received by the Company from the sale of Shares on $20-25 million plus (v) six and one quarter percent (6.25%) of the gross proceeds received by the Company from the sale of Shares of $25 million and above (the total sum of clauses (i), (ii), (iii) and (iv) are referred to herein as the “Agency Fee”) on such Closing Date. The Placement Agent may retain other brokers or dealers Agents agree that the foregoing compensation, together with any expense reimbursement payable hereunder, constitutes all of the compensation that the Placement Agents shall be entitled to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by the Placement FeeAgents from the Company in connection with the offering contemplated hereby.
(fg) No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement 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 Purchaser Investor thereof against payment by such PurchaserInvestor. If the Company shall default in its obligations to deliver Securities Shares to a Purchaser an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent Agents harmless against any loss, claim, claim or damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) hereinCompany.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agent. (a) On the basis of the representations, representations and warranties and agreements contained in, of the Company and subject to the terms and conditions of, set forth in this Agreement:
(a) The , the Company hereby authorizes engages the Placement Agent Agent, on a reasonable efforts basis, to act as its exclusive placement agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offer and sale, by the Company, of Shares to the Investors. The Shares are being sold to Investors at a price of $2.60 per share. The Placement Agent may retain other brokers or dealers to act as sub-agents on its behalf in connection with the offering and sale of the Securities (the “Offering”)Shares. Until the earlier of the Closing Date (as defined belowin Section 2 hereof) or earlier upon the termination of this Agreement pursuant to Section 7Agreement, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby expressly acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable efforts basis, and this Agreement shall not give rise to any commitment by the Placement Agent has agreed, as agent or any of its affiliates to underwrite or purchase any of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth hereinShares or otherwise provide any financing. The Placement Agent shall use have no authority to bind the Company in respect of the sale of any Shares. The sale of the Shares shall be made pursuant to subscription agreements in the form included as Exhibit A hereto (the “Subscription Agreements”).
(c) The Placement Agent shall make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser Investor whose offer to purchase Securities Shares has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser Investor or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares for its own account and, in soliciting purchases of the SecuritiesShares, the Placement Agent shall act solely as the Company’s agent and not as a principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Shares as a principal; provided, however, that any such purchases by the Placement Agent (or its affiliates) shall be fully disclosed to the Company (including the identity of such Investors) and approved by the Company in accordance with Section 1(d).
(cd) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities Shares and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without subject to providing prior notice to the Company, to reject any offer to purchase Securities Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(de) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities Shares by the Purchasers Investors shall be evidenced by the execution of Purchase Agreement the Subscription Agreements by each of the Purchasers and parties thereto in the Company.form attached hereto as Exhibit A.
(ef) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof)Date, the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent (6.06%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Shares on such Closing DateDate (the “Agency Fee”). The Placement Agent may retain other brokers or dealers agrees that the foregoing compensation, together with any expense reimbursement payable hereunder, constitutes all of the compensation that the Placement Agent shall be entitled to act as sub-agents on its behalf receive in connection with the Offeringoffering contemplated hereby; such compensation shall supersede, the fees of which shall in all respects, any and all prior agreements or understandings relating to compensation to be paid out of received by the Placement FeeAgent from the Company in connection with the offering contemplated hereby.
(fg) No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement 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 Purchaser Investor thereof against payment by such PurchaserInvestor. If the Company shall default in its obligations to deliver Securities Shares to a Purchaser an Investor whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, claim or damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) hereinCompany.
(gh) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agreemake commercially reasonable efforts to obtain a letter from the National Association of Securities Dealers, Inc. (“NASD”) indicating that the NASD shall have raised no objection to the fairness and reasonableness of the placement agent terms and arrangements.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities Shares and Warrants from the Company in connection with the proposed offering of the Securities Shares and Warrants pursuant to the Registration Statement (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares and Warrants otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, severally and not jointly, as agent of the Company, to use its commercially reasonable “best efforts” to solicit offers to purchase the Securities Shares and Warrants from the Company on the terms and subject to the conditions set forth hereinin the Prospectus. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities Shares and Warrants has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares or Warrants for its own account and, in soliciting purchases of the SecuritiesShares and Warrants, the Placement Agent shall act solely as the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares and Warrants may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares and Warrants received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities Shares and Warrants and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Shares and Warrants received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share The Shares and accompanying Warrant Warrants are being sold to the Purchasers at a public offering price of $5.281.60 per Unit (the “Public Offering Price”). The purchases of Securities Shares and Warrants by the Purchasers shall be evidenced by the execution of Purchase Agreement Subscription Agreements by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Shares and Warrants on such Closing Date. 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.
(f) No Securities which . In addition, on the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has acceptedClosing Date, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject agrees to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered issue to the Placement Agent pursuant to Sections 3 and 4 hereof warrants (the “ClosingAgent Warrants”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 to purchase an aggregate of 562,500 shares of Common Stock (the “Closing DateAgent Warrant Shares”) at the office an exercise price of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.$1.75
Appears in 1 contract
Samples: Placement Agent Agreement (Moleculin Biotech, Inc.)
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements of the Company herein contained in, and subject to all the terms and conditions ofof this Placement Agency Agreement (this “Agreement”), this Agreement:
(a) The the Company hereby authorizes appoints the Placement Agent and the Placement Agent agrees to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities from the Company Company’s placement agent, on a best efforts basis, in connection with the proposed offering issuance and sale by the Company of the Offered Securities (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable “best efforts” to solicit offers to purchase the Securities from the Company on the terms and subject to the conditions set forth hereinInvestors. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser Investor whose offer to purchase Offered Securities has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event if any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities for its own account and, in soliciting purchases of the Securities, the Placement Agent shall act solely as the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. 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 Offered Securities and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) 5% of the aggregate gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Offered Securities, if any, actually sold as set forth on such Closing Datethe cover page of the Prospectus (as hereinafter defined) upon the closing of the transactions contemplated hereby. The Placement Agent Agent, without the prior consent of the Company, may retain other brokers appoint any co-agents or dealers to act as sub-agents on its behalf in connection with the Offering, the fees of which shall be paid out issuance and sale of the Placement Fee.
(f) No Offered Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against may allocate any loss, claim, damage or expense arising from or as a result portion of such default fee to such co-agents or sub-agents except as may otherwise be agreed by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agreeAgent.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive sole agent to solicit offers for the purchase of all or part of the Securities Shares from the Company in connection with the proposed offering of the Securities Shares (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to in Section 73 hereof), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its commercially reasonable “best efforts” efforts to solicit offers to purchase the Securities Shares from the Company on the terms and subject to the conditions set forth hereinin the Prospectus (as defined below). The Placement Agent shall use commercially reasonable best efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities Shares has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares for its own account and, in soliciting purchases of the SecuritiesShares, the Placement Agent shall act solely as the Company’s agent and not as principal. Notwithstanding the foregoing and except as otherwise provided in Section 2(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Shares as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities the Shares and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(d) Each Share and accompanying Warrant The Shares are being sold to the Purchasers at a price of $5.282.25 per share. The purchases of Securities the Shares by the Purchasers shall be evidenced by the execution of Purchase Agreement Subscription Agreements by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 3 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent five (6.05.0%) of the gross proceeds received by the Company from the sale of the Shares on such Closing Date (the “Placement Fee”) from the sale of the Securities on such Closing Date. 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).
(f) No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement 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 Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities Shares to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c7(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Samples: Placement Agency Agreement (Phoenix Technologies LTD)
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company hereby authorizes the Placement Agent SX Xxxxx to act as its exclusive agent (in such capacity, the “Placement Agent”) to solicit offers for the purchase of all or part of the Securities Stock from the Company in connection with the proposed offering of the Securities Stock (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7Date, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Stock otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreedagrees, as agent of the Company, to use its commercially reasonable “best efforts” efforts to solicit offers to purchase the Securities Stock from the Company on the terms and subject to the conditions set forth hereinin the Base Prospectus (as defined below) and the Prospectus Supplement (as defined below). The Placement Agent shall use make commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities Stock has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Stock for its own account and, in soliciting purchases of the SecuritiesStock, the Placement Agent shall act solely as the Company’s agent of the Company and not as principal. Notwithstanding the foregoing and except as otherwise provided in Section 1(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Stock as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Stock may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Stock received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities the Stock and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Stock received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(d) Each Share and accompanying Warrant are being sold to the Purchasers at a price of $5.28. The purchases of Securities the Stock by the Purchasers shall be evidenced by the execution of the Purchase Agreement Agreements by each of the Purchasers and the Companyparties thereto.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), below) the Company shall pay or cause to be paid to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent (6.06%) of the aggregate gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Stock on such Closing Date. 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.
(f) No Securities Stock which the Company has shall have agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities Stock shall have been delivered to the Purchaser thereof against payment therefor by such Purchaser. If the Company shall default in its obligations obligation to deliver Securities Stock to a Purchaser whose offer it has been accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, claim or damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) hereinCompany.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive agent to solicit offers for the purchase of all or part of the Securities Shares and Warrants from the Company in connection with the proposed offering of the Securities Shares and Warrants pursuant to the Registration Statement (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7, the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares and Warrants otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, severally and not jointly, as agent of the Company, to use its commercially reasonable “best efforts” to solicit offers to purchase the Securities Shares and Warrants from the Company on the terms and subject to the conditions set forth hereinin the Prospectus. The Placement Agent shall use commercially reasonable efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities Shares and Warrants has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares or Warrants for its own account and, in soliciting purchases of the SecuritiesShares and Warrants, the Placement Agent shall act solely as the Company’s agent and not as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares and Warrants may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Shares and Warrants received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities Shares and Warrants and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Shares and Warrants received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share The Shares and accompanying Warrant Warrants are being sold to the Purchasers at a public offering price of $5.280.80 per Share and related Warrant (the “Public Offering Price”). The purchases of Securities Shares and Warrants by the Purchasers shall be evidenced by the execution of Purchase Agreement Subscription Agreements by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account designated by the Placement Agent, an aggregate amount equal to six seven percent (6.07.0%) of the gross proceeds received by the Company (the “Placement Fee”) from the sale of the Securities Shares and Warrants on such Closing Date. 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. In addition, on the Closing Date, the Company agrees to issue to the Placement Agent warrants (the “Agent Warrants”) to purchase an aggregate of 525,000 shares of Common Stock (the “Agent Warrant Shares”) at an exercise price per Agent Warrant Share equal to the greater of the public offering price per Share and related Warrant set forth on the cover page of the Prospectus and the last reported sale price of the Common Stock on the Nasdaq Capital Market on the day prior to the Closing Date (or the Closing Date if the closing occurs after 4:00 p.m. Eastern time). The Agent Warrants will be exercisable for cash or via a “net exercise” until the earlier of (i) the sale or acquisition of the Company and (ii) the fifth anniversary of the date of this Agreement.
(f) No Securities Shares and Warrants which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement Subscription 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 Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities Shares and Warrants to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c8(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 11:00 a.m. (Eastern Time) time), on October 7February 10, 2024 2020 (the “Closing Date”) at the office of Winston & Sxxxxx Lxxxxxxxxx Xxxxxxx, LLP, 800 Xxxxxxx Xx.1000 Xxxxxx xx xxx Xxxxxxxx, XXX 0000Xxx Xxxx, Xxxxxxx, XX Xxx Xxxx 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Samples: Placement Agent Agreement (Moleculin Biotech, Inc.)
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company hereby authorizes engages the Placement Agent to act as its the Company’s exclusive securities placement agent to solicit offers for the purchase of all or part of the Securities from the Company in connection with the proposed offering Offering, except as otherwise provided in this Section 1. The Agent will act as sole placement agent of the Securities (Offering or lead placement agent of a group of SEC-registered and FINRA member broker-dealers that the “Offering”)Agent has invited to participate in the offering under the Agent’s direction. Until The distribution and the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to Section 7Agent’s obligations under the Offering shall be subject to, among other things, the Company shall not, without the prior written consent completion of the Placement Agent, solicit or accept offers to purchase the Securities otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as ’s due diligence examination of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”)its affiliates.
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its reasonable “best efforts” efforts to solicit offers to purchase the Securities Bonds from the Company on the terms and subject to the conditions set forth hereinin the Prospectus (as defined below). The Placement Agent shall use commercially its reasonable best efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities prospective investor who has been solicited by the Placement Agent and whose subscription agreement to purchase the Bonds is accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Bonds for its own account and, in soliciting purchases of the SecuritiesBonds, the Placement Agent shall act solely as the Company’s agent and not as a principal. The Agent is obligated to determine the suitability of proposed investors that submit subscriptions to the Agent and do not seek to purchase the Bonds by a direct investment with the Company. Accordingly, the Agent has the right to reject, in whole or in part, any subscription application received by it from a potential investor to purchase Bonds on the grounds of such non-suitability, and such action shall not be deemed a breach of this Agreement.
(c) Subject to the provisions of this Section 1, the Agent may on behalf of the Company solicit offers for the purchase of the Securities may be solicited by the Placement Agent as agent for the Company Bonds at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Securities Bonds received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities the Bonds and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreement.
(d) Each Share This Offering is a “best efforts minimum/maximum offering,” which means that the Agent is not required to place any firm orders or purchase any of the Bonds. This placement arrangement with the Agent and accompanying Warrant are being sold any placement agents that it selects to participate in the solicitation of prospective investors is on an exclusive basis, except with respect to the Purchasers at Company’s right to secure prospective purchasers (both current security holders and new investors) directly.
(i) The Company cannot sell any of the Bonds until it has received and accepted subscriptions and payments for a price minimum of $5.282,500,000 (the “Minimum Purchase Amount”).
(ii) The Minimum Purchase Amount is based on the Company’s and Agent’s current projections of the corporate bond market. Among various items, the actual size of the Offering, the precise number of Bonds to be offered by the Company, and the conversion price per share of Company’s common stock, are expected to be the subject of continuing discussions between the Company and the Agent and will depend upon the capitalization of the Company being acceptable to the Agent. The purchases Agent may, subject to the Company’s approval (not to be unreasonably withheld, conditioned or delayed), invite placement agents who are members of Securities FINRA in good standing to participate in placing a portion of the Offering. The Company will consult with the Agent for possible broker-dealers in Europe and Israel for possible placement opportunities.
(iii) If acceptable subscriptions and payments totaling at least $2,500,000 are not received on or before August 31, 2016 (the “Minimum Date”), which is 92 days following the date of the Prospectus (which the Company may, in its discretion, extend up to 60 additional days), unless the Company determines, in the sole exercise of its discretion to extend the Offering as provided in the Prospectus, the Offering will terminate, and the Company will instruct the Escrow Agent to promptly refund the money raised without interest or deduction of escrow fees.
(iv) If the Minimum Purchase Amount is received on or before the Minimum Date, the Company will have the option to commence an Initial Closing prior to the Final Closing Date and the Bonds will be issued on the Initial Closing Date and on the Final Closing Date with October 2, 2016, which is the 31st day following the Final Closing Date, as the beginning date of interest accrual.
(v) All subscribers’ payments will be deposited in an escrow account at OceanFirst Bank, with whom the Company shall sign an Escrow Agreement. If the Company does not accept a prospective investor’s subscription, the Company will promptly return funds deposited into the escrow account by the Purchasers shall be evidenced by the execution of Purchase Agreement by each of the Purchasers and the Companyprospective investor, without any interest earned or escrow fees deducted.
(e) As compensation for services renderedCompensation to the Agent in connection with the Offering will consist of a commission of 6%, plus a non-accountable expense allowance of 1.5% based on the Closing Date (as defined value of the Bonds sold in Section 4 hereof)this Offering, including the Additional Bonds. Concurrent with the filing of the Prospectus Supplement, the Company shall advance fifty thousand dollars ($50,000) towards the non-accountable expense allowance.
(i) The Company agrees to pay the Agent or, if paid by the Agent, reimburse the latter, for the expenses relating to the Placement Offering, including but not limited to the items set forth on Exhibit A:
(ii) The Agent reserves the right to reduce any item of its compensation or a adjust the terms thereof as specified herein in the event that a determination and/or suggestion will be made by wire transfer FINRA to the effect that Agent’s aggregate compensation is in excess of immediately available funds FINRA rules or that the terms thereof require adjustment; provided, however, the aggregate compensation otherwise to an account designated by be paid to the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received Agent by the Company (may not be increased above the “Placement Fee”) from amounts stated herein without the sale written approval of the Securities on such Closing Date. 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 FeeCompany.
(f) No Securities which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Securities shall have been delivered to the Purchaser thereof against payment by such Purchaser. If the Company shall default in its obligations to deliver Securities to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Agreement to Act as Placement Agent. On the basis of the representations, warranties and agreements contained inof the Company herein contained, and subject to all the terms and conditions of, of this Agreement:
(a) The Company hereby authorizes the Placement Agent to act as its exclusive sole agent to solicit offers for the purchase of all or part of the Securities Shares from the Company in connection with the proposed offering of the Securities Shares (the “Offering”). Until the Closing Date (as defined below) or earlier upon termination of this Agreement pursuant to in Section 73 hereof), the Company shall not, without the prior written consent of the Placement Agent, solicit or accept offers to purchase the Securities Shares otherwise than through the Placement Agent, except in connection with that certain Option Agreement, dated as of May 12, 2023, between the Company and affiliates of Oberland Capital Management LLC named therein (the “Oberland Option”).
(b) The Company hereby acknowledges that the Placement Agent has agreed, as agent of the Company, to use its commercially reasonable “best efforts” efforts to solicit offers to purchase the Securities Shares from the Company on the terms and subject to the conditions set forth hereinin the Prospectus (as defined below). The Placement Agent shall use commercially reasonable best efforts to assist the Company in obtaining performance by each Purchaser whose offer to purchase Securities Shares has been solicited by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as otherwise provided in this Agreement, be obligated to disclose the identity of any potential purchaser or have any liability to the Company in the event any such purchase is not consummated for any reason. Under no circumstances will the Placement Agent be obligated to underwrite or purchase any Securities Shares for its own account and, in soliciting purchases of the SecuritiesShares, the Placement Agent shall act solely as the Company’s agent and not as principal. Notwithstanding the foregoing and except as otherwise provided in Section 2(c), it is understood and agreed that the Placement Agent (or its affiliates) may, solely at its discretion and without any obligation to do so, purchase Shares as principal.
(c) Subject to the provisions of this Section 1, offers for the purchase of the Securities Shares may be solicited by the Placement Agent as agent for the Company at such times and in such amounts as the Placement Agent deems advisable. The Placement Agent shall communicate to the Company, Company orally or in writing, each reasonable offer (including the identity of the potential purchaser) to purchase Securities Shares received by it as agent of the Company. The Company shall have the sole right to accept offers to purchase Securities the Shares and may reject any such offer, in whole or in part. The Placement Agent shall have the right, in its discretion reasonably exercised, without notice to the Company, to reject any offer to purchase Securities Shares received by it, in whole or in part, and any such rejection shall not be deemed a breach of this Agreementits agreement contained herein.
(d) Each Share and accompanying Warrant The Shares are being sold to the Purchasers at a price of $5.2820.00 per share. The purchases of Securities the Shares by the Purchasers shall be evidenced by the execution of Purchase a Subscription Agreement by each of the Purchasers and the Company.
(e) As compensation for services rendered, on the Closing Date (as defined in Section 4 3 hereof), the Company shall pay to the Placement Agent by wire transfer of immediately available funds to an account or accounts designated by the Placement Agent, an aggregate amount equal to six percent (6.0%) of the gross proceeds received by the Company from the sale of the Shares on such Closing Date (the “Placement Fee”) from the sale of the Securities on such Closing Date. 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).
(f) No Securities Shares which the Company has agreed to sell pursuant to this Agreement and the Purchase Agreement 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 Purchaser thereof against payment in full by such Purchaser. If the Company shall default in its obligations to deliver Securities Shares to a Purchaser whose offer it has accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss, claim, damage or expense arising from or as a result of such default by the Company subject to and in accordance with the procedures set forth in Section 5(c7(c) herein.
(g) The time and date of closing and delivery of the documents required to be delivered to the Placement Agent pursuant to Sections 3 and 4 hereof (the “Closing”) shall be at 10:00 a.m. (Eastern Time) on October 7, 2024 (the “Closing Date”) at the office of Winston & Sxxxxx LLP, 800 Xxxxxxx Xx., XXX 0000, Xxxxxxx, XX 00000, or at such other time and location as the Company and the Placement Agent shall otherwise agree.
Appears in 1 contract
Samples: Placement Agency Agreement (Fuel Systems Solutions, Inc.)
