ADGERO BIOPHARMACEUTICALS HOLDINGS, INC. Princeton, NJ 08540 WARRANT AGENT AGREEMENT
Exhibit
10.34
0000 XX 0 Xxxxx, XXX 000
Xxxxxxxxx, XX 00000
This
Warrant Agent Agreement, dated as of August 14, 2017 (the
“Agreement”), is entered into by and among Aegis
Capital Corp. (the “Warrant Agent”) and Adgero
Biopharmaceuticals Holdings, Inc.
(“Adgero”).
WITNESSETH:
WHEREAS, Adgero has
offered to certain of its warrant holders, subject to the terms and
conditions set forth in an “Offer to Exercise Warrants to
Purchase Common Stock of Adgero” dated as of the date of this
letter (the “Offer to Exercise”), the opportunity to
exercise, upon the terms set forth therein, warrants to purchase an
aggregate of 2,309,317 shares of Adgero’s common
stock, par value $0.0001 per share (the “Common Stock”)
at an exercise price of $5.00 per share, that were issued to (i)
investors in certain private placement transactions effectuated by
the Company in 2016 and 2017 (“Investor Warrants”),
(ii) shareholders and debt holders of the Company’s
wholly-owned subsidiary, Adgero Biopharmaceuticals, Inc.
(“Adgero Subsidiary”) in connection with the merger of
Adgero Subsidiary and the Company (“Merger Warrants”
and collectively with the Investor Warrants, the
“Warrants”);
WHEREAS, pursuant
to the Offer to Exercise, holders of the Warrants will be given the
opportunity to: (i) exercise the Warrants, at the stated exercise
price of $5.00 per share of Common Stock in cash; provided,
however, that such holders may only exercise the Warrants for up to
fifty percent (50%) of the shares of Common Stock underlying such
Warrants (the “Warrant Shares”) (an
“Exercise”), and (ii) for each Warrant Share issued
pursuant to an Exercise receive an additional Warrant Share
underlying the Warrant in exchange for the cancellation of the
right to exercise the Warrant with respect to such additional
Warrant Share, subject to the terms and conditions set forth in the
Offer to Exercise;
WHEREAS, the terms
of the Warrants held by holders who do not elect to participate in
the Offer to Exercise will retain in all respects their original
terms and provisions;
WHEREAS, Adgero
will cause certain offering materials describing, among other
things, the Offer to Exercise and other related materials relating
to the these matters (collectively, the “Offering
Materials”) to be circulated to holders of the
Warrants.
WHEREAS, Adgero
desires to engage the Warrant Agent pursuant to the terms of this
Agreement, and the Warrant Agent is willing to be so engaged, to
solicit the holders of the Warrants to participate in the Offer to
Exercise and to exercise their Warrants.
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NOW,
THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. Engagement. Adgero hereby engages and
appoints the Warrant Agent as, and the Warrant Agent hereby agrees
to serve as, the exclusive Warrant Agent for Adgero in connection
with the Offer to Exercise. Warrant Agent shall, consistent with
its obligations under the Securities Act, the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and the
applicable rules and regulations of the SEC thereunder, the rules
and regulations of Financial Industry Regulatory Authority, Inc.,
and the applicable state securities laws and regulations, use its
reasonable commercial efforts to maximize the number of holders of
Warrants who elect to participate in the Offer to Exercise and
exercise their Warrants, including appropriate communications with
the record owners and beneficial owners of the Warrants, as well as
with said owners’ brokers, agents or other
representatives.
2. Offering Materials. Adgero shall cause
copies of the Offering Materials relating to the Offer to Exercise
to be delivered to each Warrant holder, and the Warrant Agent shall
have no responsibility in this regard. The Warrant Agent is not
authorized to furnish to holders of Warrants any information other
than that contained in the Offering Materials or in such other
material as may be provided by Adgero to holders of the Warrants.
The Warrant Agent will be supplied without charge with a reasonable
number of Offering Materials.
3. Offer to Exercise Acceptance Procedures.
The Offering Materials shall set forth the procedure for holders of
Warrants to participate in the Offer to Exercise and to exercise
their Warrants.
4. Compensation.
A. Fee. Subject to the valid participation
in the Offer to Exercise and the exercise of the Warrants by a
holder of a Warrant (including any transferees), the Warrant Agent
is entitled to receive from Adgero a fee (the “Solicitation
Fee”) equal to five percent (5%) of the cash Adgero receives
for each and every Exercise of a Warrant.
B. Expenses. Whether or not the
transactions contemplated hereunder are consummated or this
Agreement is terminated, Adgero agrees to reimburse the Warrant
Agent for any and all of its reasonable out-of-pocket expenses,
upon review of a detailed invoice for such reasonable out-of-pocket
expenses, including fees and disbursements of its counsel incurred
by the Warrant Agent in connection with this Agreement, up to the
sum of $35,000 (the “Expense Allowance”).
Notwithstanding the foregoing, the Expense Allowance otherwise
payable to the Warrant Agent shall be offset by the $15,000 Adgero
advances to legal counsel for the Warrant Agent upon the execution
of this Agreement.
C. Timing of Payment. Within ten (10)
business days after the expiration date of the Offer to Exercise,
Adgero will deliver a notice to the Warrant Agent setting forth the
number of Warrants which have been properly completed for Exercise
by Holders of the Warrants and accepted by Adgero, together with
payment of the Solicitation Fee and Expense Allowance (provided any
required invoices have been provided Adgero as set forth in Section
4.B above) and any documentation reasonably requested by the
Warrant Agent.
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5. Inspection of Records. During the period
of the Offer to Exercise and for thirty (30) days thereafter, the
Warrant Agent may, at any time during business hours, examine the
records of Adgero which relates to the Offer to Exercise.
Notwithstanding the foregoing, the Warrant Agent agrees not to use
any confidential information concerning Adgero provided to the
Warrant Agent by Adgero for any purposes other than those
contemplated under this Agreement.
6. Termination. The term of this Agreement
shall be for the shorter of (i) six (6) months from and after the
date first above written or (ii) the completion of the Offer to
Exercise (the “Term”). Notwithstanding anything to the
contrary contained herein, the obligations of Adgero to the Warrant
Agent set forth in Sections 4 and 7 will survive any expiration or
termination of this Agreement.
7. Indemnification. In connection with
Adgero’s engagement of Warrant Agent, Adgero hereby agrees to
indemnify and hold harmless Warrant Agent and its affiliates, and
the respective directors, officers, shareholders, agents and
employees of any of the foregoing, as well as each person who
controls the Warrant Agent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively the
“Indemnified Persons”), from and against any and all
claims, actions, suits, proceedings (including those of
shareholders), damages, liabilities and expenses incurred by any of
them (including the reasonable fees and expenses of counsel),
(collectively a “Claim”), including costs of
investigation or inquiry, which are (A) related to or arise out of
(i) any actions taken or omitted to be taken (including any untrue
statements made or any statements omitted to be made) by Adgero, or
(ii) any actions taken or omitted to be taken by any Indemnified
Person in connection with Adgero’ engagement of the Warrant
Agent, or (B) otherwise relate to or arise out of Warrant
Agent’s activities on Adgero’ behalf under Warrant
Agent’s engagement hereunder, and Adgero shall reimburse any
Indemnified Person for all expenses (including the reasonable fees
and expenses of counsel) incurred by such Indemnified Person in
connection with investigating, preparing or defending any such
claim, action, suit or proceeding, whether or not in connection
with pending or threatened litigation in which any Indemnified
Person is a party. Adgero will not, however, be responsible for any
Claim, which is finally judicially determined to have resulted from
the gross negligence or willful misconduct of any person seeking
indemnification for such Claim. Adgero further agrees that no
Indemnified Person shall have any liability to Adgero for or in
connection with Adgero’ engagement of Warrant Agent hereunder
except for any Claim incurred by Adgero as a result of such
Indemnified Person’s gross negligence or willful misconduct
(and in no event shall any such liability exceed, in the aggregate
for all Indemnified Persons, the amount of the Solicitation Fee
actually received by the Warrant Agent).
Adgero
further agrees that it will not, without the prior written consent
of Warrant Agent, settle, compromise or consent to the entry of any
judgment in any pending or threatened Claim in respect of which
indemnification may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such Claim),
unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from
any and all liability arising out of such Claim.
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Promptly upon
receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person
shall notify Adgero in writing of such complaint or of such
assertion or institution but failure to so notify Adgero shall not
relieve Adgero from any obligation it may have hereunder, except
and only to the extent such failure results in the forfeiture by
Adgero of substantial rights and defenses. If Adgero so elects or
is requested by such Indemnified Person, Adgero will assume the
defense of such Claim, including the employment of counsel
reasonably satisfactory to such Indemnified Person and the payment
of the fees and expenses of such counsel. In the event, however,
that legal counsel to such Indemnified Person reasonably determines
that having common counsel would present such counsel with a
conflict of interest or if the defendant in, or target of, any such
Claim, includes an Indemnified Person and Adgero, and legal counsel
to such Indemnified Person reasonably concludes that there may be
legal defenses available to it or other Indemnified Persons
different from or in addition to those available to Adgero, then
such Indemnified Person may employ its own separate counsel to
represent or defend him, her or it in any such Claim and Adgero
shall pay the reasonable fees and expenses of such counsel.
Notwithstanding anything herein to the contrary, if Adgero fails
timely or diligently to defend, contest, or otherwise protect
against any Claim, the relevant Indemnified Party shall have the
right, but not the obligation, to defend, contest, compromise,
settle, assert crossclaims, or counterclaims or otherwise protect
against the same, and shall be fully indemnified by Adgero
therefor, including without limitation, for the reasonable fees and
expenses of its counsel and all amounts paid as a result of such
Claim or the compromise or settlement thereof. In addition, with
respect to any Claim in which Adgero assumes the defense, the
Indemnified Person shall have the right to participate in such
Claim and to retain his, her or its own counsel therefor at his,
her or its own expense.
Adgero
agrees that if any indemnity sought by an Indemnified Person
hereunder is held by a court to be unavailable for any reason then
(whether or not Warrant Agent is the Indemnified Person), Adgero
and Warrant Agent shall contribute to the Claim for which such
indemnity is held unavailable in such proportion as is appropriate
to reflect the relative benefits to Adgero, on the one hand, and
Warrant Agent on the other, in connection with Warrant
Agent’s engagement referred to above, subject to the
limitation that in no event shall the amount of Warrant
Agent’s contribution to such Claim exceed the amount of the
Solicitation Fee actually received by Warrant Agent from Adgero
pursuant to Warrant Agent’s engagement.
Adgero’s
indemnity, reimbursement and contribution obligations under this
Agreement (a) shall be in addition to, and shall in no way limit or
otherwise adversely affect any rights that any Indemnified Party
may have at law or at equity and (b) shall be effective whether or
not Adgero is at fault in any way.
8. Notices. All notices and other
communications given or made pursuant hereto shall be in writing
and shall be deemed to have been duly given or made as of the date
delivered personally, or the date mailed if mailed by registered or
certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a
party as shall be specified by like changes of address which shall
be effective upon receipt) or sent by facsimile transmission, with
confirmation received, if sent to
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the
Warrant Agent, will be mailed, delivered or telefaxed and confirmed
to:
Aegis
Capital Corp.
000
Xxxxxxx Xxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxx X.
Xxxxx, telefax number (000) 000-0000
with a
copy (which shall not constitute notice) to:
Xxxxxxx
Krooks LLP
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx Xxxxxxx, Esq.
telefax
number (000) 000-0000
if sent
to Adgero, will be mailed, delivered or telefaxed and confirmed
to:
0000
XX0 Xxxxx, Xxx. 000
Xxxxxxxxx, XX
00000
Attn:
Xxxxx X. Xxxxxxxxxx, Ph.D., President & CEO
with a
copy (which shall not constitute notice) to:
Xxxxxxxxxx Xxxxxxx
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxxx, Esq.
telefax
number (000) 000 0000
9. Supplements and Amendments. Any term or
provision of this Agreement may be waived at any time by the party
which is entitled to the benefits thereof, but only in a writing
signed by such party, and this Agreement may be amended or
supplemented at any time, but only by written agreement of Adgero
and the Warrant Agent. Any such waiver with respect to a failure to
observe any such provision shall not operate as a waiver of any
subsequent failure to observe such provision unless otherwise
expressly provided in such waiver.
10. Assignments. This Agreement may not be
assigned by any party without the express written approval of all
other parties.
11. Governing Law. This Agreement shall be
governed by and construed in accordance with the internal laws (and
not the laws pertaining to conflicts of laws) of the State of New
York. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be fully performed therein. Any disputes
which arise under this Agreement, even after the termination of
this Agreement, will be heard only in the state or federal courts
located in the County of New York, State of New York. The parties
hereto expressly agree to submit themselves to the jurisdiction of
the foregoing courts in the County of New York, State of New York.
The parties hereto expressly waive any rights they may have to
contest the jurisdiction, venue or authority of any court sitting
in the County and State of New York. In the event of the bringing
of any action, or suit by a party hereto against the other party
hereto, arising out of or relating to this Agreement, the party in
whose favor the final judgment or award shall be entered shall be
entitled to have and recover from the other party the costs and
expenses incurred in connection therewith, including its reasonable
attorneys’ fees. Any rights to trial by jury with respect to
any such action, proceeding or suit are hereby waived by Warrant
Agent and Adgero.
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12. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give any person or entity
other than Adgero and the Warrant Agent any legal or equitable
right, remedy or claim under this Agreement; and this Agreement
shall be for the sole and exclusive benefit of Adgero and the
Warrant Agent.
13. Descriptive Headings. The descriptive
headings of the sections of this Agreement are inserted for
convenience only and shall not control or affect the meanings or
construction of any of the provisions hereof.
14. Enforceability. If any of the provisions
of this Agreement are held to be void or unenforceable, all of the
other provisions shall nonetheless continue in full force and
effect.
15. Waiver. The waiver by any of the parties
hereto of a breach or alleged breach of the terms of this Agreement
by the other party shall not constitute a waiver of any other
breach or alleged breach.
16. Counterparts.
This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
be deemed to be one and the same agreement. A signed copy of
this Agreement delivered by facsimile, e-mail or other
means of electronic transmission shall be deemed to have the same
legal effect as delivery of an original signed copy of
this Agreement.
17. Entire Agreement. This Agreement
supersedes all previous arrangements and agreements whether written
or oral, and comprises the entire agreement, between Adgero and the
Warrant Agent in respect of the subject matter hereof.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above
written.
By:____/s/ Xxxxx X. Xxxxxxxxxx, Ph.D.
_
Title:
President &
Chief Executive Officer
Accepted and agreed
to this
14th
day of August, 2017:
AEGIS
CAPITAL CORP.
By:
___/s/ Xxxx X.
Stern___________
Name:
Xxxx X.
Xxxxx
Title:
Head of Private
Equity Banking
[Signature Page to Warrant Engagement
Agreement]
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