Monopar Therapeutics Inc. Common Stock ($0.001 par value per share) Capital on Demand™ Sales Agreement
Monopar Therapeutics Inc.
Common Stock
($0.001 par value per share)
Capital on Demand™ Sales Agreement
JonesTrading
Institutional Services LLC
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
January
13, 2020
Ladies
and Gentlemen:
Monopar
Therapeutics Inc., a Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with
JonesTrading Institutional Services LLC (the “Agent”), as
follows:
1. Issuance and Sale of Shares.
The Company agrees that, from time to time during the term of this
Agreement, on the terms and subject to the conditions set forth
herein, it may issue and sell through or to the Agent, as sales
agent or principal, shares (the “Placement Shares”) of
common stock of the Company, $0.001 par value per share (the
“Common
Stock”) provided,
however, that in no event shall the Company issue or sell,
through or to Agent, Placement Shares for an aggregate gross sales
proceeds that would exceed (a) the dollar amount of shares of
Common Stock registered on the Registration Statement (as defined
below), (b) the number of authorized but unissued shares of Common
Stock, or (c) dollar amount of shares of Common Stock permitted to
be sold under Form S-3, including General Instruction I.B.6 of Form
S-3 to the extent it remains applicable, or (iv) the dollar amount
of shares of Common Stock for which the Company has filed a
Prospectus (as defined below) (the least of (i), (ii), (iii) and
(iv), the “Maximum
Amount”). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 1 on the amount of Placement
Shares issued and sold under this Agreement shall be the sole
responsibility of the Company and that Agent shall have no
obligation in connection with such compliance. The issuance and
sale of Placement Shares through Agent will be effected pursuant to
the Registration Statement (as defined below) filed by the Company
and declared effective by the Securities and Exchange Commission
(the “Commission”), although
nothing in this Agreement shall be construed as requiring the
Company to use the Registration Statement to issue Placement
Shares.
The
Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended (the “Securities Act”) and the
rules and regulations thereunder (the “Securities Act
Regulations”), with the Commission a registration
statement on Form S-3 (File No. 333-235791), including a base
prospectus, relating to certain securities, including the Placement
Shares to be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or
will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the
rules and regulations thereunder (the “Exchange Act
Regulations”). The Company has prepared a prospectus
supplement specifically relating to the Placement Shares (the
“Prospectus
Supplement”) to the base prospectus included as part
of such registration statement. The Company will furnish to
the Agent, for use by
the Agent, copies of the
prospectus included as part of such registration statement, as
supplemented by the Prospectus Supplement, relating to the
Placement Shares. Except where the context otherwise requires, such
registration statement, and any post-effective amendment thereto,
including all documents filed as part thereof or incorporated by
reference therein, and including any information contained in a
Prospectus (as defined below) subsequently filed with the
Commission pursuant to Rule 424(b) under the Securities Act
Regulations or deemed to be a part of such registration statement
pursuant to Rule 430B of the Securities Act Regulations, or
any subsequent registration statement on Form S-3 filed pursuant to
Rule 415(a)(6) under the Securities Act by the Company to cover any
Placement Shares, is herein called the “Registration Statement.”
The base prospectus, including all documents incorporated therein
by reference, included in the Registration Statement, as it may be
supplemented by the Prospectus Supplement, in the form in which
such prospectus and/or Prospectus Supplement have most recently
been filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act Regulations, together
with any then issued Issuer Free Writing Prospectus (defined
below), is herein called the “Prospectus.” Any reference herein to the
Registration Statement, the Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference
herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference
therein.
Any
reference herein to the Registration Statement, any Prospectus
Supplement, Prospectus or any Issuer Free Writing Prospectus shall
be deemed to refer to and include the documents, if any,
incorporated by reference therein (the “Incorporated Documents”),
including, unless the context otherwise requires, the documents, if
any, filed as exhibits to such Incorporated Documents. Any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, any Prospectus Supplement, the
Prospectus or any Issuer Free Writing Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange
Act on or after the most-recent effective date of the Registration
Statement, or the date of Prospectus Supplement, Prospectus or such
Issuer Free Writing Prospectus, as the case may be, and
incorporated therein by reference. For purposes of this Agreement,
all references to the Registration Statement, the Prospectus or to
any amendment or supplement thereto shall be deemed to include any
copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System, or if applicable, the
Interactive Data Electronic Application system when used by the
Commission (collectively, “XXXXX”).
2. Placements. Each time that the
Company wishes to issue and sell Placement Shares hereunder (each,
a “Placement”), it will
notify the Agent by email notice (or other method mutually agreed
to in writing by the Parties) of the number or dollar value of
Placement Shares, the time period during which sales are requested
to be made, any limitation on the number of Placement Shares that
may be sold in any one day and any minimum price below which sales
may not be made (a “Placement Notice”), the
form of which is attached hereto as Schedule 1. The Placement
Notice shall originate from any of the individuals from the Company
set forth on Schedule 3 (with a copy to each of the other
individuals from the Company listed on such schedule), and shall be
addressed to each of the individuals from the Agent set forth on
Schedule 3, as such Schedule 3 may be amended from time to time.
The Placement Notice shall be effective unless and until
(i) the Agent declines to accept the terms contained therein
for any reason, in its sole discretion, (ii) the entire amount
of the Placement Shares thereunder have been sold, (iii) the
Company suspends or terminates the Placement Notice, (iv) the
Company issues a subsequent Placement Notice with parameters
superseding those of the earlier dated Placement Notice, or
(v) the Agreement has been terminated under the provisions of
Section 12. The amount of any discount, commission or other
compensation to be paid by the Company to Agent in connection with
the sale of the Placement Shares shall be calculated in accordance
with the terms set forth in Schedule 2. It is expressly
acknowledged and agreed that neither the Company nor the Agent will
have any obligation whatsoever with respect to a Placement or any
Placement Shares unless and until the Company delivers a Placement
Notice to the Agent and the Agent does not decline such Placement
Notice pursuant to the terms set forth above, and then only upon
the terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will
control.
3. Sale of Placement Shares by
Agent. Subject to the provisions of Section 5(a), the Agent, for
the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules
and regulations and the rules of the NASDAQ Capital Market LLC (the
“Exchange”), to sell the
Placement Shares up to the amount specified, and otherwise in
accordance with the terms of such Placement Notice. The Agent will
provide written confirmation to the Company no later than the
opening of the Trading Day (as defined below) immediately following
the Trading Day on which it has made sales of Placement Shares
hereunder setting forth the number of Placement Shares sold on such
day, the compensation payable by the Company to the Agent pursuant
to Section 2 with
respect to such sales, and the Net Proceeds (as defined below)
payable to the Company, with an itemization of the deductions made
by the Agent (as set forth in Section 5(b)) from the gross
proceeds that it receives from such sales. Subject to the terms of
the Placement Notice, the Agent may sell Placement Shares by any
method permitted by law deemed to be an “at the market
offering” as defined in Rule 415 of the Securities Act
Regulations. During the term of this Agreement, neither the Agent
nor an affiliate purchaser (as such term is defined in Regulation
M) shall, directly or indirectly, engage in (i) any short sale of
any security of the Company, as defined in Regulation SHO, (ii) any
sale of any security of the Company that the Agent does not own or
any sale which is consummated by the delivery of a security of the
Company borrowed by, or for the account of, the Agent or (iii) any
market making, bidding, stabilization or other trading activity
with regard to the Common Stock or related derivative securities,
in each case if such activity would be prohibited under Regulation
M or other anti-manipulation rules under the Securities Act or
Exchange Act.
4. Suspension of Sales. The
Company or the Agent may, upon notice to the other party in writing
(including by email correspondence to each of the individuals of
the other party set forth on Schedule 3, if receipt of such
correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of
the other party set forth on Schedule 3), suspend any sale of
Placement Shares; provided, however, that such suspension shall not
affect or impair any party’s obligations with respect to any
Placement Shares sold hereunder prior to the receipt of such
notice. While a Suspension is in effect any obligation under
Sections 7(l), 7(m), and 7(n) with respect to the delivery of
certificates, opinions, or comfort letters to the Agent, shall be
waived. Each party agrees that no such notice under this Section 4
shall be effective against any other party unless it is made to one
of the individuals named on Schedule 3 hereto, as such Schedule may
be amended from time to time.
5. Sale and Delivery to
the Agent; Settlement.
(a) Sale
of Placement Shares.
On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the
Agent’s acceptance of the terms of a Placement Notice, and
unless the sale of the Placement Shares described therein has been
declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, the Agent, for the period specified in the
Placement Notice, will use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such
Placement Shares up to the amount specified in such Placement
Notice, and otherwise in accordance with the terms of such
Placement Notice. The Company acknowledges and agrees that (i)
there can be no assurance that the Agent will be successful in
selling Placement Shares, (ii) the Agent will incur no liability or
obligation to the Company or any other person or entity if it does
not sell Placement Shares for any reason other than a failure by
the Agent to use its commercially reasonable best efforts
consistent with its normal trading and sales practices and
applicable law and regulations to sell such Placement Shares as
required under this Agreement and (iii) the Agent shall be under no
obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the Agent
and the Company.
(b) Settlement of Placement
Shares. Unless
otherwise specified in the applicable Placement Notice, settlement
for sales of Placement Shares will occur on the second
(2nd)
Trading Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are
made (each, a “Settlement Date”). The
Agent shall notify the Company of each sale of Placement Shares no
later than the opening day of the Trading Day following the Trading
Day that the Agent sold Placement Shares. The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of
the Placement Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by the Agent, after
deduction for (i) the Agent’s commission, discount or other
compensation for such sales payable by the Company pursuant to
Section 2 hereof, and (ii) any transaction fees imposed by any
governmental or self-regulatory organization in respect of such
sales.
(c) Delivery of Placement
Shares. On or before
each Settlement Date, the Company will, or will cause its transfer
agent to, electronically transfer the Placement Shares being sold
by crediting the Agent’s or its designee’s account
(provided the Agent shall have given the Company written notice of
such designee at least one Trading Day prior to the Settlement
Date) at The Depository Trust Company through its Deposit and
Withdrawal at Custodian System or by such other means of delivery
as may be mutually agreed upon by the parties hereto which in all
cases shall be freely tradable, transferable, registered shares in
good deliverable form. On each Settlement Date, the Agent will
deliver the related Net Proceeds in same day funds to an account
designated by the Company on, or prior to, the Settlement Date. The
Company agrees that if the Company, or its transfer agent (if
applicable), defaults in its obligation to deliver Placement Shares
on a Settlement Date, the Company agrees that in addition to and in
no way limiting the rights and obligations set forth in Section
10(a) hereto, it will (i) hold the Agent harmless against any loss,
claim, damage, or reasonable and documented expense (including
reasonable and documented legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company or
its transfer agent (if applicable) and (ii) pay to the Agent
(without duplication) any commission, discount, or other
compensation to which it would otherwise have been entitled absent
such default.
(d) Limitations on Offering
Size. Under no
circumstances shall the Company cause or request the offer or sale
of any Placement Shares if, after giving effect to the sale of such
Placement Shares, the aggregate gross sales proceeds of Placement
Shares sold pursuant to this Agreement would exceed the lesser of
(A) together with all sales of Placement Shares under this
Agreement, the Maximum Amount, (B) the amount available for
offer and sale under the currently effective Registration Statement
and (C) the amount authorized from time to time to be issued
and sold under this Agreement by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized
executive committee, and notified to the Agent in writing. Under no
circumstances shall the Company cause or request the offer or sale
of any Placement Shares pursuant to this Agreement at a price lower
than the minimum price authorized from time to time by the
Company’s board of directors, duly authorized committee
thereof or a duly authorized executive committee, and notified to
the Agent in writing. Further, under no circumstances shall the
Company cause or permit the aggregate offering amount of Placement
Shares sold pursuant to this Agreement to exceed the Maximum
Amount.
6. Representations and Warranties of the
Company. Except as disclosed in the Registration Statement
or Prospectus (including the Incorporated Documents), the Company
represents and warrants to, and agrees with Agent that as of the
date of this Agreement and as of each Applicable Time (as defined
below), unless such representation, warranty or agreement specifies
otherwise:
(a) Registration Statement and
Prospectus. The Company and the transactions contemplated by
this Agreement meet the requirements for and comply with the
conditions for the use of Form S-3 under the Securities Act. The
Registration Statement has been filed with the Commission and has
been declared effective under the Securities Act. The Prospectus
Supplement will name Agent as underwriter, acting as agent, in the
section entitled “Plan of Distribution.” The Company
has not received, and has no notice of, any order of the Commission
preventing or suspending the use of the Registration Statement, or
threatening or instituting proceedings for that purpose. The
Registration Statement and the offer and sale of Placement Shares
as contemplated hereby meet the requirements of Rule 415 under
the Securities Act and comply in all material respects with said
Rule. Any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
have been so described or filed. Copies of the Registration
Statement, the Prospectus, and any such amendments or supplements
and all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Agreement have
been delivered, or are available through XXXXX, to Agent and its
counsel. The Company has not distributed and, prior to the later to
occur of each Settlement Date and completion of the distribution of
the Placement Shares, will not distribute any offering material in
connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus to which Agent has consented (any such
consent not to be unreasonably withheld, conditioned or delayed).
The Common Stock is currently quoted on the Exchange under the
trading symbol “MNPR”. The Company has not, in the 12
months preceding the date hereof, received notice from the Exchange
to the effect that the Company is not in compliance with the
listing or maintenance requirements. The Company has no reason to
believe that it will not in the foreseeable future continue to be
in compliance with all such listing and maintenance
requirements.
(b) No Misstatement or Omission.
The Registration Statement, when it became or becomes effective,
and the Prospectus, and any amendment or supplement thereto, on the
date of such Prospectus or amendment or supplement, conformed and
will conform in all material respects with the requirements of the
Securities Act. At each Settlement Date, the Registration Statement
and the Prospectus, as of such date, will conform in all material
respects with the requirements of the Securities Act. The
Registration Statement, when it became or becomes effective, did
not, and will not, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus and any amendment or supplement thereto, on the date
thereof and at each Applicable Time (defined below), did not and
will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The documents incorporated by reference in the
Prospectus or any Prospectus Supplement did not, and any further
documents filed and incorporated by reference therein will not,
when filed with the Commission, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated in such document or necessary to make the statements in such
document, in light of the circumstances under which they were made,
not misleading. The foregoing shall not apply to statements in, or
omissions from, any such document made in reliance upon, and in
conformity with, information furnished to the Company by Agent
specifically for use in the preparation thereof.
(c) Conformity with Securities Act and
Exchange Act. The Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement
thereto, and the Incorporated Documents, when such documents were
or are filed with the Commission under the Securities Act or the
Exchange Act or became or become effective under the Securities
Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable.
(d) Financial Information. The
financial statements of the Company included or incorporated by
reference in the Registration Statement, the Prospectus and the
Issuer Free Writing Prospectuses, if any, together with the related
notes and schedules, present fairly, in all material respects, the
financial position of the Company and the Subsidiaries (as defined
below) as of the dates indicated and the results of operations,
cash flows and changes in stockholders’ equity of the Company
and the Subsidiaries for the periods specified (subject, in the
case of unaudited financial statements, to normal year-end
adjustments) and have been prepared in compliance with the
requirements of the Securities Act and Exchange Act and in
conformity with GAAP (as defined below) applied on a consistent
basis during the periods involved; the other financial and
statistical data with respect to the Company and the Subsidiaries
contained or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, are accurately and fairly presented and prepared on a basis
consistent with the financial statements and books and records of
the Company; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by
reference in the Registration Statement, or the Prospectus that are
not included or incorporated by reference as required; the Company
and the Subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet
obligations), not described in the Registration Statement
(excluding the exhibits thereto), and the Prospectus; and all
disclosures contained or incorporated by reference in the
Registration Statement, the Prospectus and the Issuer Free Writing
Prospectuses, if any, regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable;
(e) Conformity with XXXXX Filing.
The Prospectus delivered to Agent for use in connection with the
sale of the Placement Shares pursuant to this Agreement will be
identical to the versions of the Prospectus created to be
transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T.
(f) Organization. The Company and
the Subsidiaries are, and will be, duly organized, validly existing
as a corporation and in good standing under the laws of their
respective jurisdiction of organization. Each of the Company and
the Subsidiaries is and will be, duly licensed or qualified as a
foreign corporation for transaction of business and in good
standing under the laws of each other jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such license or qualification, and has all corporate power
and authority necessary to own or hold its properties and to
conduct its business as described in the Registration Statement and
the Prospectus, except where the failure to be so qualified or in
good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on
or affecting the assets, business, operations, earnings,
properties, condition (financial or otherwise), prospects,
stockholders’ equity or results of operations of the Company
and the Subsidiaries taken as a whole, or prevent or materially
interfere with consummation of the transactions contemplated hereby
(a “Material Adverse
Effect”).
(g) Subsidiaries. As of the date
here, the Company’s only Subsidiaries are set forth in the
Company's Note 2 to its financial statements, filed with the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2018. Beginning with the Annual Report on Form
10-K for the fiscal year ended on December 31, 2019, the
Company’s only Subsidiaries, if any, are set forth on Exhibit
21.1 to the Company’s Annual Report on Form 10-K for the most
recently ended fiscal year. The Company owns directly or
indirectly, all of the equity interests of the Subsidiaries free
and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity
interests of the Subsidiaries are validly issued and are fully
paid, nonassessable and free of preemptive and similar
rights.
(h) No Violation or Default.
Neither the Company nor any Subsidiary is (i) in violation of
its charter or by-laws or similar organizational documents;
(ii) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the property or assets of the Company or
any Subsidiary is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of each of clauses (ii) and (iii) above, for any such
violation or default that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no other party under any
material contract or other agreement to which it or any Subsidiary
is a party is in default in any respect thereunder where such
default would have a Material Adverse Effect.
(i) No Material Adverse Effect.
Subsequent to the respective dates as of which information is given
in the Registration Statement, the Prospectus and the Issuer Free
Writing Prospectuses, if any, (including any document deemed
incorporated by reference therein), there has not been (i) any
Material Adverse Effect, in or affecting the business, properties,
management, condition (financial or otherwise), results of
operations, or prospects of the Company or the Subsidiaries, (ii)
any transaction which is material to the Company and the
Subsidiaries taken as a whole (other than (A) the grant of awards
under equity incentive plans, (B) changes in the number of shares
of outstanding Common Stock due to exercise or conversion of
securities exercisable for or convertible into Common Stock
outstanding as of the date of this Agreement, (C) any repurchase of
capital stock of the Company, (D) as a result of the sale of
Placement Shares or (E) other than as publicly reported or
announced), (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or the Subsidiaries which is material to the Company or the
Subsidiaries taken as a whole, (iv) any material change in the
capital stock or outstanding long-term indebtedness of the Company
or the Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or the
Subsidiaries, other than in each case above in the ordinary course
of business (including any document deemed incorporated by
reference therein).
(j) Capitalization. The issued and
outstanding shares of capital stock of the Company have been
validly issued, are fully paid and non-assessable and are not
subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein
(other than the grant of additional options and restricted stock
units under the Company’s existing stock option plans, or
changes in the number of outstanding shares of Common Stock of the
Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof) and such authorized
capital stock conforms in all material respects to the description
thereof set forth in the Registration Statement and the Prospectus.
The description of the securities of the Company in the
Registration Statement and the Prospectus is complete and accurate
in all material respects. Except as disclosed in or contemplated by
the Registration Statement or the Prospectus, as of the date
referred to therein, the Company does not have outstanding any
options to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities, except for options
outstanding under the Company’s stock incentive
plan.
(k) Authorization; Enforceability.
The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except to (i) the
extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable
principles, (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable
remedies, and (iii) the indemnification and contribution provisions
of Section 10 hereof may be limited by federal or state securities
laws and public policy considered in respect thereof.
(l) Authorization of Placement
Shares. The Placement Shares, when issued and delivered
pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, against payment
therefor as provided herein, will be duly and validly authorized
and issued and fully paid and non-assessable, free and clear of any
pledge, lien, encumbrance, security interest or other claim,
including any statutory or contractual preemptive rights, resale
rights, rights of first refusal or other similar rights, and will
be registered pursuant to Section 12 of the Exchange Act. The
Placement Shares, when issued, will conform in all material
respects to the description thereof set forth in or incorporated
into the Prospectus.
(m) No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority having jurisdiction over the Company is
required for the execution, delivery and performance by the Company
this Agreement, the issuance and sale by the Company of the
Placement Shares, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may
be obtained or be required under applicable state securities laws
or by the by-laws and rules of the Financial Industry Regulatory
Authority (“FINRA”) or the Exchange
in connection with the sale of the Placement Shares by the
Agent.
(n) No Preferential Rights.
(i) No person, as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Securities Act (each, a
“Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any Common Stock or shares of any other capital stock
or other securities of the Company (other than upon the exercise of
options to purchase Common Stock), (ii) no Person has any
preemptive rights, resale rights, rights of first refusal, or any
other rights (whether pursuant to a “poison pill”
provision or otherwise) to purchase any Common Stock or shares of
any other capital stock or other securities of the Company,
(iii) no Person has the right to act as an underwriter or as
a financial advisor to the Company in connection with the offer and
sale of Common Stock, and (iv) no Person has the right,
contractual or otherwise, to require the Company to register under
the Securities Act any Common Stock or shares of any other capital
stock or other securities of the Company, or to include any such
shares or other securities in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Placement Shares as contemplated thereby or otherwise, except in
each case for such rights as have been waived on or prior to the
date hereof.
(o) Independent Public Accountant.
BPM LLP (the “Accountant”), whose
report on the consolidated financial statements of the Company is
filed with the Commission as part of the Company's most recent Annual
Report on Form 10-K filed with the Commission and incorporated by
reference into the Registration Statement and the Prospectus, are
and, during the periods covered by their report, were an
independent registered public accounting firm with respect to the
Company within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the
Company’s knowledge, the Accountant is not in violation of
the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx Act”) with
respect to the Company.
(p) Enforceability of Agreements.
To the Company’s knowledge, all agreements between the
Company and third parties expressly referenced in the Prospectus,
other than such agreements that have expired by their terms or the
termination of which is disclosed in documents filed by the Company
on XXXXX, are legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms, except to
the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions
of certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof; except for
any unenforceability that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse
Effect.
(q) No Litigation. There are no
legal, governmental or regulatory actions, suits or proceedings
pending, nor, to the Company’s knowledge, any legal,
governmental or regulatory investigations, to which the Company or
any Subsidiary is a party or to which any property of the Company
or any Subsidiary is the subject that, individually or in the
aggregate, if determined adversely to the Company or any
Subsidiary, would reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the
Company or any Subsidiary to perform its obligations under this
Agreement; to the Company’s knowledge, no such actions, suits
or proceedings are threatened or contemplated by any governmental
or regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
investigations, actions, suits or proceedings that are required
under the Securities Act to be described in the Prospectus that are
not so described; and (ii) there are no contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement that are not so
filed.
(r) Licenses and Permits. The
Company and the Subsidiaries possess or have obtained, all
licenses, certificates, consents, orders, approvals, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Registration
Statement and the Prospectus (the “Permits”), except where
the failure to possess, obtain or make the same would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Subsidiary has
received written notice of any proceeding relating to revocation or
modification of any such Permit or has any reason to believe that
such Permit will not be renewed in the ordinary course, except
where the failure to obtain any such renewal would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(s) Market Capitalization. As of
the close of trading on the Exchange on the Trading Day
immediately prior to the date of this Agreement, the aggregate
market value of the outstanding voting and non-voting common
equity (as defined in Securities Act Rule 405) of the Company held
by persons other than affiliates of the Company (pursuant to
Securities Act Rule 144, those that directly, or indirectly through
one or more intermediaries, control, or are controlled by, or are
under common control with, the Company) (the
“Non-Affiliate
Shares”), was approximately $59.2 million
(calculated by multiplying (x) the price at which the common equity
of the Company was last sold on the Exchange on a Trading Day
within sixty days of the date of this Agreement times (y) the
number of Non-Affiliate Shares). The Company is not a shell company
(as defined in Rule 405 under the Securities Act) and has not been
a shell company for at least 12 calendar months previously and if
it has been a shell company at any time previously, has filed
current Form 10 information (as defined in Instruction I.B.6 of
Form S-3) with the Commission at least 12 calendar months
previously reflecting its status as an entity that is not a shell
company.
(t) No Material Defaults. Neither
the Company nor any Subsidiary has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
have a Material Adverse Effect. The Company has not filed a report
pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of its last Annual Report on Form 10-K, indicating that it
(i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
could reasonably be expected to have a Material Adverse
Effect.
(u) Certain Market Activities.
Neither the Company nor any Subsidiary, nor to the Company’s
knowledge, any of its directors, officers or controlling persons
has taken, directly or indirectly, any action designed, or that has
constituted or would reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares.
(v) Broker/Dealer Relationships.
Neither the Company, any of its Subsidiaries, nor, to the
Company’s knowledge, any related entities (i) is
required to register as a “broker” or
“dealer” in accordance with the provisions of the
Exchange Act or (ii) directly or indirectly through one or
more intermediaries, controls or is a “person associated with
a member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).
(w) No Reliance. The Company has
not relied upon the Agent or legal counsel for the Agent for any
legal, tax or accounting advice in connection with the offering and
sale of the Placement Shares.
(x) Taxes. The Company and the
Subsidiaries have filed all federal, state, local and foreign tax
returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such
taxes have become due and are not being contested in good faith,
except where the failure to file or pay would not have a Material
Adverse Effect. Except as otherwise disclosed in or contemplated by
the Registration Statement or the Prospectus, no tax deficiency has
been determined adversely to the Company or any Subsidiary which
has had, individually or in the aggregate, a Material Adverse
Effect. The Company has no knowledge of any federal, state or other
governmental tax deficiency, penalty or assessment which has been
asserted or threatened against it which would reasonably be
expected to have a Material Adverse Effect.
(y) Title to Real and Personal
Property. The Company and the Subsidiaries have good and
valid title in fee simple to all items of real property and good
and valid title to all personal property described in the
Registration Statement or Prospectus as being owned by them that
are material to the businesses of the Company or such Subsidiary,
in each case free and clear of all liens, encumbrances and claims,
except those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company and the
Subsidiaries or (ii) would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Any real
property described in the Registration Statement or Prospectus as
being leased by the Company and the Subsidiaries is held by them
under valid, existing and enforceable leases, except those that
(A) do not materially interfere with the use made or proposed
to be made of such property by the Company or the Subsidiaries or
(B) would not be reasonably expected to have a Material Adverse
Effect.
(z) Intellectual Property. The
Company and the Subsidiaries own or possess enforceable rights to
use all patents, patent applications, trademarks (both registered
and unregistered), service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) (collectively, the “Intellectual Property”),
necessary for the conduct of their respective businesses as
conducted as of the date hereof, except to the extent that the
failure to own or possess adequate rights to use such Intellectual
Property would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; neither the Company nor
any Subsidiary has received any written notice of any claim of
infringement or conflict which asserted Intellectual Property
rights of others, which infringement or conflict, if the subject of
an unfavorable decision, would have a Material Adverse Effect;
there are no pending, or to the Company’s knowledge,
threatened judicial proceedings or interference proceedings
challenging the Company’s or any Subsidiary’s rights in
or to or the validity of the scope of any of the Company’s or
any Subsidiary’s patents, patent applications or proprietary
information, except if such proceedings would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(aa) Environmental
Laws. The Company and the Subsidiaries (i) are in compliance
with any and all applicable federal, state, local and foreign laws,
rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”); (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses as described in the Registration Statement and the
Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability
as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(bb) Disclosure
Controls. The Company maintains systems of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company is not aware of any material weaknesses in its internal
control over financial reporting (other than as set forth in the
Prospectus). Since the date of the latest audited financial
statements of the Company included in the Prospectus, there has
been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting (other than as set forth in the
Prospectus). The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for
the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company is made
known to the certifying officers by others within those entities,
particularly during the period in which the Company’s Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, is being prepared. The Company’s certifying officers
have evaluated the effectiveness of the Company’s controls
and procedures as of a date within 90 days prior to the filing date
of the Company’s most recent Annual Report on Form 10-K (such
date, the “Evaluation Date”). The
Company presented in its most recent Annual Report on Form 10-K the
conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company’s internal
controls (as such term is defined in Item 307(b) of Regulation S-K
under the Securities Act) or, to the Company’s knowledge, in
other factors that could significantly affect the Company’s
internal controls. To the knowledge of the Company, the
Company’s “internal controls over financial
reporting” and “disclosure controls and
procedures” are effective.
(cc) Xxxxxxxx-Xxxxx.
Solely to the extent that the SarbanesOxley Act of 2002 and
the rules and regulations promulgated in connection therewith (the
“SarbanesOxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications, are or have been applicable to the Company, there
is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply with any applicable provisions of the SarbanesOxley
Act.
(dd) Finder’s
Fees. Neither the Company nor any Subsidiary has incurred
any liability for any finder’s fees, brokerage commissions or
similar payments in connection with the transactions herein
contemplated, except as may otherwise exist with respect to Agent
pursuant to this Agreement.
(ee) Labor
Disputes. No labor disturbance by or dispute with employees
of the Company or any Subsidiary exists or, to the knowledge of the
Company, is threatened which would reasonably be expected to have a
Material Adverse Effect.
(ff) Investment
Company Act. Neither the Company or any Subsidiary is or,
after giving effect to the offering and sale of the Placement
Shares, will it be an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”).
(gg) Operations.
The operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance with applicable financial
record keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company or
the Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”),
except as would not have a Material Adverse Effect; and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any
Subsidiary with respect to the Money Laundering Laws is pending or,
to the knowledge of the Company, threatened.
(hh) Off-Balance
Sheet Arrangements. There are no transactions, arrangements
and other relationships between and/or among the Company, and/or,
to the knowledge of the Company, any of its affiliates and any
unconsolidated entity, including, but not limited to, any
structured finance, special purpose or limited purpose entity
(each, an “Off
Balance Sheet Transaction”) that could reasonably be
expected to affect materially the Company’s liquidity or the
availability of or requirements for its capital resources,
including those Off Balance Sheet Transactions described in the
Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations
(Release Nos. 33-8056; 34-45321; FR-61), required to be described
in the Prospectus which have not been described as
required.
(ii) Other
Agreements. The Company is not a party to any agreement with
an agent or underwriter for any other “at the market”
or continuous equity transaction other than this
Agreement.
(jj) ERISA.
To the knowledge of the Company, each material employee benefit
plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and
the Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”), except to the
extent that any non-compliance would not result in material
liability to the Company; no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred which would result in a material liability to the Company
with respect to any such plan excluding transactions effected
pursuant to a statutory or administrative exemption; and for each
such plan that is subject to the funding rules of Section 412 of
the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been
incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but
unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
(kk) Forward
Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) (a “Forward Looking
Statement”) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith. The Forward
Looking Statements incorporated by reference in the Registration
Statement and the Prospectus from the Company’s most recent
Annual Report on Form 10-K (i) were, when made, within the
coverage of the safe harbor for forward looking statements set
forth in Section 27A of the Securities Act, Rule 175(b) under the
Securities Act or Rule 3b-6 under the Exchange Act, as applicable,
(ii) were made by the Company with a reasonable basis and in
good faith and reflect the Company’s good faith commercially
reasonable estimate of the matters described therein, and
(iii) have been prepared in accordance with Item 10 of
Regulation S-K under the Securities Act.
(ll) Agent
Purchases. The Company acknowledges and agrees that Agent
has informed the Company that the Agent may, to the extent
permitted under the Securities Act and the Exchange Act, purchase
and sell Common Stock for its own account while this Agreement is
in effect, provided, that (i) no such purchase or sales shall
take place while a Placement Notice is in effect (except to the
extent the Agent may engage in sales of Placement Shares purchased
or deemed purchased from the Company as a “riskless
principal” or in a similar capacity) and (ii) the
Company shall not be deemed to have authorized or consented to any
such purchases or sales by the Agent.
(mm) Margin
Rules. To the Company’s knowledge, neither the
issuance, sale and delivery of the Placement Shares nor the
application of the proceeds thereof by the Company as described in
the Registration Statement and the Prospectus will violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of
Governors.
(nn) Insurance.
The Company and the Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company
and the Subsidiaries reasonably believe is adequate for the conduct
of their respective business and in such amounts as are prudent and
customary in the businesses in which they are engaged.
(oo) No
Improper Practices. (i) Neither the Company nor, to the
Company's knowledge, the Subsidiaries, nor to the Company’s
knowledge, any of their respective executive officers has, in the
past five years, made any unlawful contributions to any candidate
for any political office (or failed fully to disclose any
contribution in violation of law) or made any contribution or other
payment to any official of, or candidate for, any federal, state,
municipal, or foreign office or other person charged with similar
public or quasi-public duty in violation of any law or of the
character required to be disclosed in the Prospectus; (ii) no
relationship, direct or indirect, exists between or among the
Company or, to the Company’s knowledge, the Subsidiaries or
any affiliate of any them, on the one hand, and the directors,
officers and stockholders of the Company or, to the Company’s
knowledge, the Subsidiaries, on the other hand, that is required by
the Securities Act to be described in the Registration Statement
and the Prospectus that is not so described; (iii) no
relationship, direct or indirect, exists between or among the
Company the Subsidiaries or any affiliate of the Company, on the
one hand, and the directors, officers, stockholders or directors of
the Company or, to the Company's knowledge, the Subsidiaries, on
the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is
not so described; (iv) there are no material outstanding
loans or advances or material guarantees of indebtedness by the
Company or, to the Company's knowledge, the Subsidiaries to or for
the benefit of any of their respective officers or directors or any
of the members of the families of any of them; and (v) the Company
has not offered, or caused any placement agent to offer, Common
Stock to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company or
the Subsidiaries to alter the customer’s or supplier’s
level or type of business with the Company or the Subsidiaries or
(B) a trade journalist or publication to write or publish
favorable information about the Company or the Subsidiaries or any
of their respective products or services, and, (vi) neither the
Company nor the Subsidiaries nor, to the Company’s knowledge,
any employee or agent of the Company or the Subsidiaries has made
any payment of funds of the Company or the Subsidiaries or received
or retained any funds in violation of any law, rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act
of 1977), which payment, receipt or retention of funds is of a
character required to be disclosed in the Registration Statement or
the Prospectus.
(pp) Compliance
with Certain Laws, Rules, Procedures, Etc. To the
Company’s knowledge, the conduct of the preclinical and
clinical testing, and manufacture of the products of the Company or
any subsidiary is in compliance, in all material respects, with all
laws, rules and regulations applicable to such activities,
including without limitation applicable good laboratory practices,
good clinical practices and good manufacturing practices, except
for such non-compliance as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. The descriptions of the results of such tests and trials
contained in the Prospectus are accurate in all material respects.
The Company has not received notice of adverse finding, warning
letter or clinical hold notice from the United States Food and Drug
Administration (the “FDA”) or any non-U.S.
counterpart of any of the foregoing, or any untitled letter or
other correspondence or notice from the FDA or any other
governmental authority or agency or any institutional or ethical
review board alleging or asserting noncompliance with any law, rule
or regulation applicable in any jurisdiction, except notices,
letters, and correspondences and non-U.S. counterparts thereof
alleging or asserting such noncompliance as would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary has, either
voluntarily or involuntarily, initiated, conducted or issued, or
caused to be initiated, conducted or issued, any recall, field
correction, market withdrawal or replacement, safety alert,
warning, “dear doctor” letter, investigator notice, or
other notice or action relating to an alleged or potential lack of
safety or efficacy of any product of the Company or any subsidiary,
any alleged product defect of any product of the Company or the
subsidiary, or any violation of any material applicable law, rule,
regulation or any clinical trial or marketing license, approval,
permit or authorization for any product of the Company or any
subsidiary, and the Company is not aware of any facts or
information that would cause it to initiate any such notice or
action and has no knowledge or reason to believe that the FDA, the
EMEA or any other governmental agency or authority or any
institutional or ethical review board or other non-governmental
authority intends to impose, require, request or suggest such
notice or action, except in each case as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect. The Company has not received and is otherwise not aware of
any notices, correspondence or other communication from the FDA or
other governmental regulatory agency or subdivision thereof, or any
institutional or ethical review boards, asserting non-compliance
with any applicable statutes, rules, regulations, orders, or other
laws, or requiring or requesting the termination, suspension or
modification of any preclinical or clinical studies, tests,
investigations, or trials conducted by, or on behalf of, the
Company or any subsidiary or in which the Company or any subsidiary
has participated.
(qq) Status
Under the Securities Act. The Company was not and is not an
ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities
Act in connection with the offering of the Placement
Shares.
(rr) No
Misstatement or Omission in an Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus, as of its
issue date and as of each Applicable Time (as defined in
Section 24 below),
did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any incorporated document deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Agent specifically for
use therein.
(ss) No
Conflicts. Neither the execution of this Agreement, nor the
issuance, offering or sale of the Placement Shares, nor the
consummation of any of the transactions contemplated herein and
therein, nor the compliance by the Company with the terms and
provisions hereof and thereof will conflict with, or will result in
a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except (i) such conflicts, breaches or defaults
as may have been waived and (ii) such conflicts, breaches and
defaults that would not have a Material Adverse Effect; nor will
such action result (x) in any violation of the provisions of the
organizational or governing documents of the Company, or (y) in any
material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or of any court or of
any federal, state or other regulatory authority or other
government body having jurisdiction over the Company, other than in
each case any such conflict, breach or violation that, individually
or in the aggregate, would not have a Material Adverse
Effect.
(tt) (i)
The Company represents that, neither it nor any Subsidiary
(collectively, the “Entity”) director,
officer, employee, nor to the Entity’s knowledge, any agent,
affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (tt), “Person”) that is, or is
owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the United
Nations Security Council (“UNSC”), the European
Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”),
nor
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions (including, without limitation, Burma/Myanmar, Cuba,
Iran, North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will
not, directly or indirectly, use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or
otherwise).
(iii) The Entity represents and covenants that, except
as detailed in the Prospectus, for the past 5 years, the Entity has
not knowingly engaged in, is not now knowingly engaged in, and will
not engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions.
(uu) Stock
Transfer Taxes. On each Settlement Date, all stock transfer
or other taxes (other than income taxes) which are required to be
paid in connection with the sale and transfer of the Placement
Shares to be sold hereunder will be, or will have been, fully paid
or provided for by the Company and all laws imposing such taxes
will be or will have been fully complied with in all material
respects.
(vv) (A)
To the Company’s knowledge, there has been no security breach
or incident, unauthorized access or disclosure, or other compromise
of or relating to the Company’s or its Subsidiaries’
information technology and computer systems, networks, hardware,
software, data and databases (including, as applicable, the data
and information of their respective customers, employees,
suppliers, vendors and any third party data maintained, processed
or stored by the Company and its Subsidiaries, and any such data
processed or stored by third parties on behalf of the Company and
its Subsidiaries), equipment or technology (collectively,
“IT Systems and
Data”), except in each case as would not reasonably
expected to, individually or in the aggregate, have a Material
Adverse Effect; and (B) the Company and its Subsidiaries have
implemented appropriate controls, policies, procedures, and
technological safeguards to maintain and protect the integrity,
continuous operation, redundancy and security of their IT Systems
and Data reasonably consistent in all material respects with
industry standards and practices, or as required by applicable
regulatory standards. The Company and its Subsidiaries are
presently in material compliance with all applicable laws or
statutes and all judgments, orders, rules and regulations of any
court or arbitrator or governmental or regulatory authority
relating to the privacy and security of IT Systems and Data and to
the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification;
Any
certificate signed by an officer of the Company and delivered to
the Agent or to counsel for the Agent pursuant to or by the express
terms of this Agreement shall be deemed to be a representation and
warranty by the Company, as applicable, to the Agent as to the
matters set forth therein.
7. Covenants of the Company. The
Company covenants and agrees with Agent that:
(a) Registration Statement
Amendments. After the date of this Agreement and during any
period in which a Prospectus relating to any Placement Shares is
required to be delivered by Agent under the Securities Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act), (i) the
Company will notify the Agent promptly of the time when any
subsequent amendment to the Registration Statement, other than
documents incorporated by reference, has been filed with the
Commission and/or has become effective or any subsequent supplement
to the Prospectus has been filed and of any request by the
Commission for any amendment or supplement to the Registration
Statement or Prospectus or for additional information,
(ii) the Company will prepare and file with the Commission,
promptly upon the Agent’s request, any amendments or
supplements to the Registration Statement or Prospectus that, in
the Agent’s reasonable opinion, may be necessary or advisable
in connection with the distribution of the Placement Shares by the
Agent (provided, however, that the failure of the Agent to make
such request shall not relieve the Company of any obligation or
liability hereunder, or affect the Agent’s right to rely on
the representations and warranties made by the Company in this
Agreement and provided, further, that the only remedy the Agent
shall have with respect to the failure to make such filing shall be
to cease making sales under this Agreement until such amendment or
supplement is filed); (iii) the Company will not file any
amendment or supplement to the Registration Statement or Prospectus
relating to the Placement Shares or a security convertible into the
Placement Shares unless a copy thereof has been submitted to Agent
within a reasonable period of time before the filing and the Agent
has not reasonably objected thereto in writing within two (2)
Business Days (provided, however, that (A) the failure of the Agent
to make such objection shall not relieve the Company of any
obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the
Company in this Agreement, (B) the Company has no obligation to
provide the Agent any advance copy of such filing or to provide the
Agent an opportunity to object to such filing if such filing does
not name the Agent and does not relate to the transactions
contemplated by this Agreement, and (C) the only remedy Agent shall
have with respect to the failure by the Company to obtain such
consent shall be to cease making sales under this Agreement) and
the Company will furnish to the Agent at the time of filing thereof
a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement or
Prospectus, except for those documents available via XXXXX; and
(iv) the Company will cause each amendment or supplement to
the Prospectus to be filed with the Commission as required pursuant
to the applicable paragraph of Rule 424(b) of the Securities Act
or, in the case of any document to be incorporated therein by
reference, to be filed with the Commission as required pursuant to
the Exchange Act, within the time period prescribed (the
determination to file or not file any amendment or supplement with
the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall
be made exclusively by the Company). Notwithstanding the foregoing,
the Section 7(a) shall in not be construed to limit the
Company’s ability to file with the Commission a registration
statement on Form S-3 pursuant to Rule 415(a)(6) of the Securities
Act to cover any securities registered pursuant the Current
Registration Statement, including any Placement Shares, as a result
of the end of the three-year period described in Rule 415(a)(5) of
the Securities Act.
(b) Notice of Commission Stop
Orders. The Company will advise the Agent, promptly after it
receives notice or obtains knowledge thereof, of the issuance or
threatened issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement, of the suspension
of the qualification of the Placement Shares for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its
commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be
issued. The Company will advise the Agent promptly after it
receives any request by the Commission for any amendments to the
Registration Statement or any amendment or supplements to the
Prospectus or any Issuer Free Writing Prospectus or for additional
information related to the offering of the Placement Shares or for
additional information related to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery of Prospectus; Subsequent
Changes. During any period in which a Prospectus relating to
the Placement Shares is required to be delivered by the Agent under
the Securities Act with respect to the offer and sale of the
Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the
Securities Act), the Company will use its commercially reasonable
efforts to comply with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or
before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or
any other provision of or under the Exchange Act. If the Company
has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use
commercially reasonable efforts to comply with the provisions of
and make all requisite filings with the Commission pursuant to said
Rule 430B and to notify the Agent promptly of all such filings. If
during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such
period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the
Company will promptly notify Agent to suspend the offering of
Placement Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at
the expense of the Company) so as to correct such statement or
omission or effect such compliance; provided, however, that the
Company may delay the filing of any amendment or supplement, if in
the judgment of the Company, it is in the best interests of the
Company.
(d) Listing of Placement Shares.
During any period in which the Prospectus relating to the Placement
Shares is required to be delivered by the Agent under the
Securities Act with respect to the offer and sale of the Placement
Shares, the Company will use its commercially reasonable efforts to
cause the Placement Shares to be listed on the Exchange and to
qualify the Placement Shares for sale under the securities laws of
such jurisdictions as Agent reasonably designates and to continue
such qualifications in effect so long as required for the
distribution of the Placement Shares; provided, however, that the
Company shall not be required in connection therewith to qualify as
a foreign corporation or dealer in securities or file a general
consent to service of process in any jurisdiction.
(e) Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agent and its
counsel (at the reasonable expense of the Company) copies of the
Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are
filed with the Commission during any period in which a Prospectus
relating to the Placement Shares is required to be delivered under
the Securities Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by
reference therein), in each case as soon as reasonably practicable
and in such quantities as the Agent may from time to time
reasonably request and, at Agent’s reasonable request, will
also furnish copies of the Prospectus to each exchange or market on
which sales of the Placement Shares may be made; provided, however,
that the Company shall not be required to furnish any document
(other than the Prospectus) to the Agent to the extent such
document is available on XXXXX.
(f) Earnings Statement. The Company
will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the
end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions
of Section 11(a) and Rule 158 of the Securities Act, provided that
the Company will be deemed to have furnished such statements to its
security holders to the extent they are filed with the Commission
on XXXXX.
(g) Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the
section entitled “Use of Proceeds.”
(h) Notice of Other Sales. Without
prior written notice to Agent, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Common Stock (other than the
Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any
rights to purchase or acquire, Common Stock during the period
beginning on the date on which any Placement Notice is delivered to
Agent hereunder and ending on the second (2nd) Trading Day
immediately following the final Settlement Date with respect to
Placement Shares sold pursuant to such Placement Notice (or, if the
Placement Notice has been terminated or suspended prior to the sale
of all Placement Shares covered by a Placement Notice, the date of
such suspension or termination); and will not directly or
indirectly in any other “at the market” or continuous
equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Common Stock (other than
the Placement Shares offered pursuant to this Agreement) or
securities convertible into or exchangeable for Common Stock,
warrants or any rights to purchase or acquire, Common Stock prior
to the termination of this Agreement; provided, however, that such
restrictions will not be required in connection with the
Company’s issuance, grant, or sale of (i) Common Stock,
restricted stock units, options to purchase Common Stock or Common
Stock issuable upon the exercise of options, pursuant to any
employee or director stock option or benefits plan, stock ownership
plan or dividend reinvestment plan (but not Common Stock subject to
a waiver to exceed plan limits in its dividend reinvestment plan)
of the Company whether now in effect or hereafter implemented, and
(ii) Common Stock issuable upon conversion of securities or
the exercise of warrants, options or other rights in effect or
outstanding, and disclosed in filings by the Company available on
XXXXX or otherwise in writing to the Agent, and (iii) Common Stock
or securities convertible into or exchangeable for shares of Common
Stock issued in privately negotiated transactions to vendors,
customers or other commercial or strategic partners or potential
commercial or strategic partners, as consideration for mergers,
acquisitions, other business combinations, in connection with any
credit facility or a firm commitment equity line with an investor
acquiring securities for its own account and not with a view
towards, or for resale in connection with, the public sale or
distribution thereof, or in other transactions conducted in a
manner so as not to be integrated with the Common Stock offered
under this Agreement. Notwithstanding the foregoing, nothing herein
shall be construed to restrict the Company’s ability to file
a registration statement under the Securities Act, or require the
Company to provide notice to the Agent of any filing
thereof.
(i) Change of Circumstances. The
Company will, at any time during the pendency of a Placement Notice
advise the Agent promptly after it shall have received notice or
obtained knowledge thereof, of any information or fact that would
alter or affect in any material respect any opinion, certificate,
letter or other document required to be provided to the Agent
pursuant to this Agreement.
(j) Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with
any reasonable due diligence review conducted by the Agent or its
representatives in connection with the transactions contemplated
hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during
regular business hours and at the Company’s principal
offices, as the Agent may reasonably request.
(k) Required Filings Relating to Placement
of Placement Shares. The Company agrees that on such dates
as the Securities Act shall require, the Company will (i) file
a prospectus supplement with the Commission under the applicable
paragraph of Rule 424(b) under the Securities Act (each and every
filing under Rule 424(b), a “Filing Date”), which
prospectus supplement will set forth, within the relevant period,
the amount of Placement Shares sold through the Agent, the Net
Proceeds to the Company and the compensation payable by the Company
to the Agent with respect to such Placement Shares, and
(ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such
exchange or market.
(l) Representation Dates;
Certificate. On the date of this Agreement and each time the
Company:
(i) files the Prospectus relating to the Placement Shares or amends
or supplements (other than a prospectus supplement relating solely
to an offering of securities other than the Placement Shares) the
Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or
supplement, but not, in each case, by means of incorporation of
documents by reference into the Registration Statement or the
Prospectus relating to the Placement Shares;
(ii) files an annual report on Form 10-K under the Exchange Act
(including any Form 10-K/A containing amended financial information
or a material amendment to the previously filed Form
10-K);
(iii) files its quarterly reports on Form 10-Q under the Exchange
Act; or
(iv) files a current report on Form 8-K containing amended
financial information (other than information
“furnished” pursuant to Items 2.02 or 7.01 of
Form 8-K or to provide disclosure pursuant to Item 8.01 of
Form 8-K relating to the reclassification of certain properties as
discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) under the Exchange Act;
(Each date of filing of one or more of the documents referred to in
clauses (i) through (iv) shall be a “Representation
Date.”)
the
Company shall furnish the Agent (but in the case of clause (iv)
above only if the Agent reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the
form attached hereto as Exhibit 7(l). The requirement to provide a
certificate under this Section 7(l) shall be waived for any
Representation Date occurring at a time at which no Placement
Notice is pending, which waiver shall continue until the earlier to
occur of the date the Company delivers a Placement Notice hereunder
(which for such calendar quarter shall be considered a
Representation Date) and the next occurring Representation Date;
provided, however, that such waiver shall not apply for any
Representation Date on which the Company files its annual report on
Form 10-K. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a
Representation Date when the Company relied on such waiver and did
not provide the Agent with a certificate under this Section 7(l),
then before the Company delivers the Placement Notice or the Agent
sells any Placement Shares, the Company shall provide the Agent
with a certificate, in the form attached hereto as Exhibit 7(l),
dated the date of the Placement Notice.
(m) Legal Opinion. (1) On or before
the first Placement Notice and (2) within five (5) Trading Days of
each Representation Date with respect to which the Company is
obligated to deliver a certificate in the form attached hereto as
Exhibit 7(m) for which no waiver is applicable, the Company shall
cause to be furnished to the Agent a written opinion of Xxxxx &
Xxxxxxxxx, LLP. (“Company Counsel”), or
other counsel reasonably satisfactory to the Agent, in form and
substance reasonably satisfactory to Agent and its counsel,
provided, however, the Company shall be required to furnish to
Agent no more than one opinion hereunder per calendar quarter;
provided, further, that in lieu of such opinions for subsequent
periodic filings under the Exchange Act, counsel may furnish the
Agent with a letter (a “Reliance Letter”) to the
effect that the Agent may rely on a prior opinion delivered under
this Section 7(n) to the same extent as if it were dated the date
of such letter (except that statements in such prior opinion shall
be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented as of the date of the
Reliance Letter).
(n) Comfort Letter. (1) On or
before the first Placement Notice and (2) within five (5) Trading
Days of each Representation Date, other than pursuant to Section
7(l)(iii), with respect to which the Company is obligated to
deliver a certificate in the form attached hereto as Exhibit 7(l)
for which no waiver is applicable, the Company shall cause its
independent accountants to furnish the Agent letters (the
“Comfort
Letters”), dated the date the Comfort Letter is
delivered, which shall meet the requirements set forth in this
Section 7(n); provided, that if reasonably requested by the Agent,
the Company shall cause a Comfort Letter to be furnished to the
Agent within ten (10) Trading Days of the date of occurrence of any
material transaction or event, including the restatement of the
Company’s financial statements. The Comfort Letter from the
Company’s independent accountants shall be in a form and
substance reasonably satisfactory to the Agent, (i) confirming that
they are an independent public accounting firm within the meaning
of the Securities Act and the PCAOB, (ii) stating, as of such date,
the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in
connection with registered public offerings (the first such letter,
the “Initial Comfort
Letter”) and (iii) updating the Initial Comfort Letter
with any information that would have been included in the Initial
Comfort Letter had it been given on such date and modified as
necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such
letter.
(o) Market Activities. The Company
will not, directly or indirectly, (i) take any action designed
to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of Common Stock or (ii) sell, bid for, or purchase
Common Stock in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Placement Shares other
than the Agent; provided, however, that the Company may bid for and
purchase shares of its Common Stock in accordance with Rule 10b-18
under the Exchange Act.
(p) Investment Company Act. The
Company will conduct its affairs in such a manner so as to
reasonably ensure neither it nor any Subsidiary will be or become,
at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the
Investment Company Act, assuming no change in the
Commission’s current interpretation as to entities that are
not considered an investment company.
(q) No Offer to Sell. Other than
the Prospectus and any Issuer Free Writing Prospectus approved in
advance by the Company and the Agent in its capacity as agent
hereunder, neither the Agent nor the Company (including its agents
and representatives, other than Agent in its capacity as such) will
make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405 under the Securities Act),
required to be filed with the Commission, that constitutes an offer
to sell or solicitation of an offer to buy Placement Shares
hereunder.
(r) Blue Sky and Other
Qualifications. The
Company will use its commercially reasonable efforts, in
cooperation with the Agent, to
qualify the Placement Shares for offering and sale, or to obtain an
exemption for the Placement Shares to be offered and sold, under
the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Agent may designate and to maintain
such qualifications and exemptions in effect for so long as
required for the distribution of the Placement Shares (but in no
event for less than one year from the date of this Agreement);
provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in
which the Placement Shares have been so qualified or exempt, the
Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification or
exemption, as the case may be, in effect for so long as required
for the distribution of the Placement Shares (but in no event for
less than one year from the date of this Agreement).
(s) Xxxxxxxx-Xxxxx Act. The Company
will use its commercially reasonable efforts to comply with all
effective applicable provisions of the Xxxxxxxx-Xxxxx
Act.
8. Payment of Expenses. The
Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation,
filing, including any fees required by the Commission, and printing
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment and supplement
thereto, in such number as the Agent may reasonably deem necessary,
(ii) the printing and delivery to the Agent of this Agreement and
such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement
Shares, (iii) the fees and disbursements of the counsel,
accountants and other advisors to the Company, (iv) the reasonable
and documented out-of-pocket expenses of Agent, including fees and
disbursements of counsel to the Agent, (v) the printing and
delivery to the Agent of copies of any Permitted Issuer Free
Writing Prospectus (defined below) and the Prospectus and any
amendments or supplements thereto in such number as the Agent may
reasonably deem necessary, (vi) the preparation, printing and
delivery to the Agent of copies of the blue sky survey and any
Canadian “wrapper” and any supplements thereto, in such
number as the Agent shall deem necessary, (vii) the fees and
expenses of the transfer agent and registrar for the Common Stock,
(viii) the reasonable and documented fees and expenses incident to
any review by FINRA of the terms of the sale of the Placement
Shares, including reasonable and documented fees and expenses of
counsel to the Agent, and (ix) the documented fees and expenses
incurred in connection with the listing of the Placement Shares on
the Exchange. Notwithstanding the foregoing, in no event shall the
amount of expenses reimbursed to Agent hereunder exceed $40,000 in
connection with the execution of this Agreement, and up to $5,000
per year in connection with the review and preparation of the
deliverables set forth in Sections 7(l), (m) and (n).
9. Conditions to Agent’s
Obligations. The obligations of the Agent hereunder with
respect to a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the
Company herein, to the due performance by the Company of its
obligations hereunder, to the completion by the Agent of a due
diligence review satisfactory to it in its reasonable judgment, and
to the continuing reasonable satisfaction (or waiver by the Agent
in its sole discretion) of the following additional
conditions:
(a) Registration Statement
Effective. The Registration Statement shall have become
effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement
Notice.
(b) No Material Notices. None of
the following events shall have occurred and be continuing:
(i) receipt by the Company of any request for additional
information from the Commission or any other federal or state
governmental authority during the period of effectiveness of the
Registration Statement, the response to which would require any
post-effective amendments or supplements to the Registration
Statement or the Prospectus; (ii) the issuance by the
Commission or any other federal or state governmental authority of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from
qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; or (iv) the occurrence of any event that makes
any material statement made in the Registration Statement or the
Prospectus or any material document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in the Registration
Statement, the Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any materially untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and, that in the case of the Prospectus, it
will not contain any materially untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(c) No Misstatement or Material
Omission. Agent shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in
the Agent’s reasonable opinion, in consultation with outside
counsel, is material, or omits to state a fact that in the
Agent’s reasonable opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
(d) Material Changes. Except as
contemplated in the Prospectus, or disclosed in the Company’s
reports filed with the Commission, there shall not have been any
Material Adverse Effect, or any development that would reasonably
be expected to cause a Material Adverse Effect.
(e) Legal Opinion. The Agent shall
have received the opinions of Company Counsel required to be
delivered pursuant to Section 7(m) on or before the date on which
such delivery of such opinion is required pursuant to Section
7(m).
(f) Comfort Letter. The Agent shall
have received the Comfort Letter required to be delivered pursuant
to Section 7(n) on or before the date on which such delivery of
such Comfort Letter is required pursuant to Section
7(n).
(g) Representation Certificate. The
Agent shall have received the certificate required to be delivered
pursuant to Section 7(l) on or before the date on which delivery of
such certificate is required pursuant to Section 7(l).
(h) Secretary's Certificate. On or
prior to the first Representation Date, the Agent shall have
received a certificate, signed on behalf of the Company by its
corporate Secretary, in form and substance reasonably satisfactory
to the Agent and its counsel.
(i) No Suspension. Trading in the
Common Stock shall not have been suspended on the Exchange, and the
Common Stock shall not have been delisted from the
Exchange.
(j) Other Materials. On each date
on which the Company is required to deliver a certificate pursuant
to Section 7(l), the Company shall have furnished to the Agent such
appropriate further information, certificates and documents as the
Agent may reasonably request. All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof. The Company will furnish the Agent with such
conformed copies of such opinions, certificates, letters and other
documents as the Agent shall reasonably request.
(k) Securities Act Filings Made.
All filings with the Commission required by Rule 424 under the
Securities Act with respect to the Placement Shares to have been
filed prior to the issuance of any Placement Notice hereunder shall
have been made within the applicable time period prescribed for
such filing by Rule 424.
(l) Approval for Listing. The
Placement Shares shall either have been approved for listing on the
Exchange, subject only to notice of issuance, or the Company shall
have filed an application for listing of the Placement Shares on
the Exchange at, or prior to, the issuance of any Placement
Notice.
(m) No Termination Event. There
shall not have occurred any event that would permit the Agent to
terminate this Agreement pursuant to Section 12(a).
10. Indemnification and
Contribution.
(a) Company Indemnification. The
Company agrees to indemnify and hold harmless the Agent, its
partners, members, directors, officers, employees and agents and
each person, if any, who controls the Agent within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that
(subject to Section 10(d) below) any such settlement is
effected with the written consent of the Company, which consent
shall not unreasonably be delayed or withheld; and
(iii) against any and all
expense whatsoever, as incurred (including the reasonable and
documented fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, of the Company to the extent that any such
expense is not paid under (i) or (ii) above,
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in
reliance upon and in conformity with written information furnished
to the Company by the Agent
expressly for use in the Registration Statement (or any amendment
thereto), or in any related Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Agent Indemnification. Agent
agrees to indemnify and hold harmless the Company and its directors
and each officer of the Company who signed the Registration
Statement, and each person, if any, who (i) controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act or (ii) is controlled by or is
under common control with the Company against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in Section 10(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendments
thereto) or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with information relating to the
Agent and furnished to the Company in writing by the Agent
expressly for use therein.
(c) Procedure. Any party that
proposes to assert the right to be indemnified under this Section
10 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 10,
notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it may have to any
indemnified party otherwise than under this Section 10 and
(ii) any liability that it may have to any indemnified party
under the foregoing provision of this Section 10 unless, and only
to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for
the reasonable and documented costs of investigation subsequently
incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it
or other indemnified parties that are different from or in addition
to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable and documented
fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that
the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly after the
indemnifying party receives a written invoice related to fees,
disbursements and other reasonable charges in detail. An
indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written
consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this
Section 10 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent
(1) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (2) does not include a
statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Contribution. In order to
provide for just and equitable contribution in circumstances in
which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the
Agent, the Company and the Agent will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred and
documented in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons
other than the Agent, such as persons who control the Company
within the meaning of the Securities Act, officers of the Company
who signed the Registration Statement and directors of the Company,
who also may be liable for contribution) to which the Company and
the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one
hand and the Agent on the other hand. The relative benefits
received by the Company on the one hand and the Agent on the other
hand shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Placement Shares (before deducting
expenses) received by the Company bear to the total compensation
received by the Agent (before deducting expenses) from the sale of
Placement Shares on behalf of the Company. If, but only if, the
allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Agent, on
the other hand, with respect to the statements or omission that
resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Agent, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Agent agree that it would not be just and equitable
if contributions pursuant to this Section 10(d) were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above
in this Section 10(d) shall be deemed to include, for the purpose
of this Section 10(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent consistent with
Section 10(c) hereof. Notwithstanding the foregoing provisions of
this Section 10(d), the Agent shall not be required to contribute
any amount in excess of the commissions received by it under this
Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 10(d), any person who controls a party to
this Agreement within the meaning of the Securities Act, and any
officers, directors, partners, employees or agents of the Agent,
will have the same rights to contribution as that party, and each
director of the Company and each officer of the Company who signed
the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt
of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this
Section 10(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not
relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this Section
10(d) except to the extent that the failure to so notify such other
party materially prejudiced the substantive rights or defenses of
the party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 10(c) hereof,
no party will be liable for
contribution with respect to any action or claim settled without
its written consent if such consent is required pursuant to Section
10(c) hereof.
11. Additional
Covenants.
(a) Representations and Covenants of the
Agent. The Agent represents and warrants that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the
applicable statutes and regulations of each state in which the
Placement Shares will be offered and sold, except such states in
which the Agent is exempt from registration or such registration is
not otherwise required. The Agent shall continue, for the term of
this Agreement, to be duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and
sold, except such states in which the Agent is exempt from
registration or such registration is not otherwise required, during
the term of this Agreement. The Agent shall comply with all
applicable law and regulations in connection with the transactions
contemplated by this Agreement, including the issuance and sale
through the Agent of the Placement Shares.
(b) Representations and Agreements to
Survive Delivery. The indemnity and contribution agreements
contained in Section 10 of this Agreement and all representations
and warranties of the Company herein or in certificates delivered
pursuant hereto shall survive, as of their respective dates,
regardless of (i) any investigation made by or on behalf of
the Agent, any controlling persons, or the Company (or any of their
respective officers, directors or controlling persons),
(ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this
Agreement.
12. Termination.
(a) The Agent may
terminate this Agreement, by notice to the Company, as hereinafter
specified at any time (1) if there has been, since the time of
execution of this Agreement or since the date as of which
information is given in the Prospectus, any Material Adverse
Effect, or any development that would reasonably be expected to
result in a Material Adverse Effect has occurred, which in the
reasonable judgment of the Agent, is material and adverse and makes
it impractical or inadvisable to market the Placement Shares,
(2) if there has occurred any material adverse change in the
financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development
involving a prospective change in national or international
political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Agent, impracticable or inadvisable to market the Placement Shares
or to enforce contracts for the sale of the Placement Shares,
(3) if trading in the Common Stock has been suspended or
limited by the Commission or the Exchange, or if trading generally
on the Exchange has been suspended or limited, or minimum prices
for trading have been fixed on the Exchange, (4) if any suspension
of trading of any securities of the Company on any exchange or in
the over-the-counter market shall have occurred and be continuing,
(5) if a major disruption of securities settlements or clearance
services in the United States shall have occurred and be
continuing, or (6) if a banking moratorium has been declared
by either U.S. Federal or New York authorities. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 8 (Expenses), Section
10 (Indemnification), Section 11 (Survival of Representations),
Section 17 (Governing Law; Consent to Jurisdiction) and Section 18
(Waiver of Jury Trial) hereof shall remain in full force and effect
notwithstanding such termination. If the Agent elects to terminate
this Agreement as provided in this Section 12(a), the Agent shall
provide the required notice as specified in Section 13
(Notices).
(b) The Company shall
have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any
time after the date of this Agreement. Any such termination shall
be without liability of any party to any other party except that
the provisions of Section 8, Section 10, Section 11(b), Section 17
and Section 18 hereof shall remain in full force and effect
notwithstanding such termination.
(c) The Agent shall
have the right, by giving ten (10) days notice as hereinafter
specified to terminate this Agreement in its sole discretion at any
time after the date of this Agreement. Any such termination shall
be without liability of any party to any other party except that
the provisions of Section 8 (Payment of Expenses), Section 10
(Indemnification and Contribution), Section 11(b) (Representations
and Agreements to Survive Delivery), Section 17 (Governing Law and
Time; Waiver of Jury Trial) and Section 18 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
(d) Unless earlier
terminated pursuant to this Section 12, this Agreement shall
automatically terminate upon the issuance and sale of all of the
Placement Shares through the Agent on the terms and subject to the
conditions set forth herein; provided that the provisions of
Section 8, Section 10, Section 11(b), Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such
termination.
(e) This Agreement
shall remain in full force and effect unless terminated pursuant to
Sections 12(a), (b), (c), or (d) above or otherwise by mutual
agreement of the parties; provided, however, that any such
termination by mutual agreement shall in all cases be deemed to
provide that Section 8, Section 10, Section 11(b), Section 17 and
Section 18 shall remain in full force and effect.
(f) Any termination of
this Agreement shall be effective on the date specified in such
notice of termination; provided, however, that such termination
shall not be effective until the close of business on the date of
receipt of such notice by the Agent or the Company, as the case may
be, provided, further, any termination of this Agreement in
accordance with the terms of Section 12(b) or (c) shall not be
effective until the date that is ten days after the date of such
written notice. If such termination shall occur prior to the
Settlement Date for any sale of Placement Shares, such Placement
Shares shall settle in accordance with the provisions of this
Agreement.
(g) Subject to the
additional limitations set forth in Section 8 of this Agreement, in
the event of termination of this Agreement prior to the sale of any
Placement Shares, the Agent shall be entitled only to reimbursement
of its reasonable and documented out-of-pocket expenses actually
incurred.
13. Notices. All notices or other
communications required or permitted to be given by any party to
any other party pursuant to the terms of this Agreement shall be in
writing, unless otherwise specified, and if sent to the Agent,
shall be delivered to:
JonesTrading
Institutional Services LLC
000
Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxxxx, XX 00000
Attn:
Xxxxx Xxxx
Email:
Xxxxx@xxxxxxxxxxxx.xxx
and
Xxxxx
Xxxxxx, LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxx
Email:
XXXxxxxxx@xxxxxxxxxxx.xxx
and if
to the Company, shall be delivered to:
Monopar
Therapeutics Inc.
0000
Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX
00000
Attn:
Xxxxxxxx X. Xxxxxxxx, CEO
Email:
#
with a
copy to:
Xxxxx
& Xxxxxxxxx LLP
000
Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, XX
00000
Attn:
Xxxxxx Xxxx, Esq.
Email:
xxxxx@xxxxxxxx.xxx
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on
or before 4:30 p.m., New York City time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage
prepaid).
An
electronic communication (“Electronic Notice”) shall
be deemed written notice for purposes of this Section 13 if sent to
the electronic mail address specified by the receiving party in
this Section 13 or under separate cover. Electronic Notice shall be
deemed received at the time the party sending Electronic Notice
receives verification of receipt by the receiving party. Any party
receiving Electronic Notice may request and shall be entitled to
receive the notice on paper, in a nonelectronic form
(“Nonelectronic
Notice”) which shall be sent to the requesting party
within ten (10) days of receipt of the written request for
Nonelectronic Notice.
14. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and the Agent and their respective successors and the
affiliates, controlling persons, officers and directors referred to
in Section 10 hereof. References to any of the parties contained in
this Agreement shall be deemed to include the successors and
permitted assigns of such party. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other party;
provided, however, that the Agent may assign its rights and
obligations hereunder to an affiliate thereof without obtaining the
Company’s consent, so long as such affiliate is a registered
broker dealer.
15. Adjustments for Stock Splits.
The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account
any stock split, reverse stock split, stock dividend or similar
event effected with respect to the Placement Shares.
16. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other
prior and contemporaneous agreements and undertakings, both written
and oral, among the parties hereto with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the
Company and the Agent. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable as written
by a court of competent jurisdiction, then such provision shall be
given full force and effect to the fullest possible extent that it
is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only
to the extent that giving effect to such provision and the
remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties as reflected in this
Agreement.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY
TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND
AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN
ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH
PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED
HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW.
19. Use of Information. The
Agent may not use any information gained in connection with this
Agreement and the transactions contemplated by this Agreement,
including due diligence, to advise any party with respect to
transactions not expressly approved by the Company in
writing.
20. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile or other electronic
transmission, including email of a .pdf attachment.
21. Effect of Headings. The section
and Exhibit headings herein are for convenience only and shall
not affect the construction hereof.
22. Permitted Free Writing
Prospectuses.
The
Company represents, warrants and agrees that, unless it obtains the
prior consent of the Agent (which consent shall not be unreasonably
withheld or delayed), and the Agent represents, warrants and agrees
that, unless it obtains the prior consent of the Company, it has
not made and will not make any offer relating to the Placement
Shares that would constitute an Issuer Free Writing Prospectus, or
that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus
consented to by the Agent or by the Company, as the case may be, is
hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents and warrants that it has
treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
23. Absence of Fiduciary
Relationship.
The
Company acknowledges and agrees that:
(a) The Agent is acting solely as agent in
connection with the public offering of the Placement Shares and in
connection with each transaction contemplated by this Agreement and
the process leading to such transactions, and no fiduciary or
advisory relationship between the Company or any of its respective
affiliates, stockholders (or other equity holders), creditors or
employees or any other party, on the one hand, and the Agent, on the other hand, has been or
will be created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether or not the Agent has advised or is advising the
Company on other matters, and the
Agent has no obligation to the Company with respect to the
transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;
(b) it is capable of
evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) the Agent has not provided any legal,
accounting, regulatory or tax advice with respect to the
transactions contemplated by this Agreement and it has consulted
its own legal, accounting, regulatory and tax advisors to the
extent it has deemed appropriate;
(d) it is aware that
the Agent and its affiliates
are engaged in a broad range of transactions which may involve
interests that differ from those of the Company and the Agent has no obligation to disclose
such interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship or otherwise;
and
(e) it waives, to the
fullest extent permitted by law, any claims it may have against
the Agent for breach of
fiduciary duty or alleged breach of fiduciary duty in connection
with the sale of Placement Shares under this Agreement and agrees
that the Agent shall not have
any liability (whether direct or indirect, in contract, tort or
otherwise) to it in respect of such a fiduciary duty claim or to
any person asserting a fiduciary duty claim on its behalf or in
right of it or the Company, employees or creditors of Company,
other than in respect of the Agent’s obligations under this
Agreement and to keep information provided by the Company to the
Agent and the Agent's counsel confidential to the extent not
otherwise publicly-available.
24. Definitions.
As used
in this Agreement, the following terms have the respective meanings
set forth below:
“Applicable Time” means
(i) each Representation Date, (ii) the time of each sale of any
Placement Shares pursuant to this Agreement, and (iii) each
Settlement Date.
“Business Day” shall mean
any day on which the Exchange and commercial banks in the City of
New York are open for business.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Placement Shares that (1) is required to be filed with the
Commission by the Company, (2) is a “road show”
that is a “written communication” within the meaning of
Rule 433(d)(8)(i) whether or not required to be filed with the
Commission, or (3) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Placement Shares or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g)
under the Securities Act Regulations.
“Rule 172,”
“Rule
405,” “Rule 415,”
“Rule
424,” “Rule 424(b),”
“Rule 430B,” and
“Rule 433” refer to
such rules under the Securities Act Regulations.
“Subsidiary” means any
subsidiary of the Company that will be identified on Exhibit 21.1
to the Company's Annual Report on Form 10-K for the most recently
ended fiscal year, and shall, where applicable, also include any
direct or indirect subsidiary of the Company formed or acquired
after the date hereof.
“Trading Day” means any
day on which shares of Common Stock are purchased and sold on the
Exchange.
All references in this Agreement to financial
statements and schedules and other information that is
“contained,” “included” or
“stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information that is incorporated by reference
in the Registration Statement or the Prospectus,
as the case may
be.
All
references in this Agreement to the Registration Statement, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to XXXXX; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing
Prospectuses that, pursuant to Rule 433, are not required to
be filed with the Commission) shall be deemed to include the copy
thereof filed with the Commission pursuant to XXXXX; and all
references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements,
“wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Placement
Shares by the Agent outside of the United States.
If the
foregoing correctly sets forth the understanding between the
Company and the Agent, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the Agent.
Very
truly yours,
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MONOPAR
THERAPEUTICS INC. .
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By:
|
/s/ Xxxxxxxx X.
Xxxxxxxx
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Name: Xxxxxxxx X.
Xxxxxxxx
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Title:
Chief
Executive Officer
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ACCEPTED
as of the date first-above written:
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JONESTRADING INSTITUTIONAL SERVICES
LLC
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By:
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/s/ Xxxxx
Xxxx
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Name:
Xxxxx
Xxxx
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Title:
General
Counsel
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SCHEDULE 1
__________________________
FORM OF PLACEMENT NOTICE
__________________________
From:
Monopar Therapeutics Inc.
To:
JONESTRADING INSTITUTIONAL
SERVICES LLC
Attention:
_____________________
Subject: Placement
Notice
Gentlemen:
Pursuant to the
terms and subject to the conditions contained in the Capital on
Demand™ Sales Agreement between, Monopar Therapeutics Inc.
(the “Company”) and
JonesTrading Institutional Services LLC (“Agent”), dated January
13, 2020, the Company hereby requests that the Agent sell up to
____________ of the Company’s Common Stock, $0.001 par value per share, at a minimum
market price of $_______ per share, during the time period
beginning [month, day, time] and ending [month, day,
time].
SCHEDULE 2
__________________________
Compensation
__________________________
The
Company shall pay to the Agent in cash, upon each sale of Placement
Shares pursuant to this Agreement, an amount of up to 3.0% of the
gross proceeds from each sale of Placement Shares.
SCHEDULE 3
__________________________
Notice
Parties
__________________________
The Company
Xxxxxxxx X.
Xxxxxxxx, Chief Executive
Officer
#
Xxx X.
Xxxxxxxxxx, Chief Financial
Officer
#
Xxxxxx
X. Xxxxx, Chief Scientific
Officer
#
With a
Copy to: Xxxxxxxxxxx X. Xxxxx, Executive
Director
#
The Agent
Xxx
Xxxxx
xxxx@xxxxxxxxxxxx.xxx
Xxxxx
Xxxxxx
xxxxxxx@xxxxxxxxxxxx.xxx
Xxxx
X’Xxxxxxxx
xxxxx@xxxxxxxxxxxx.xxx
Xxxx
Xxxxxx
xxxxx@xxxxxxxxxxxx.xxx
Burke
Cook
xxxxx@xxxxxxxxxxxx.xxx
with a
copy to XXXX@xxxxxxxxxxxx.xxx
EXHIBIT 7(l)
Form
of Representation Date Certificate
This
Representation Date Certificate (this “Certificate”) is executed
and delivered in connection with Section 7(l) of the Capital on
Demand™ Sales Agreement (the “Agreement”), dated
January 13, 2020, and entered into between Monopar Therapeutics
Inc. (the “Company”) and
JonesTrading Institutional Services LLC. All capitalized terms used
but not defined herein shall have the meanings given to such terms
in the Agreement
The
undersigned, a duly appointed and authorized officer of the
Company, having made all necessary inquiries to establish the
accuracy of the statements below and having been authorized by the
Company to execute this certificate, hereby certifies as
follows:
1.
As of the date of
this Certificate, (i) the Registration Statement does not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading and (ii) neither the
Registration Statement nor the Prospectus contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading and (iii) no event has occurred as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or
misleading.
2.
Each of the
representations and warranties of the Company contained in the
Agreement (A) to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating
to materiality or Material Adverse Effect, are true and correct on
and as of the date hereof with the same force and effect as if
expressly made on and as of the date hereof, except for those
representations and warranties that speak solely as of a specific
date and which were true and correct as of such date, and (B) to
the extent such representations and warranties are not subject to
any qualifications or exceptions, are true and correct in all
material respects as of the date hereof as if made on and as of the
date hereof with the same force and effect as if expressly made on
and as of the date hereof except for those representations and
warranties that speak solely as of a specific date and which were
so true and correct as of such date.
3.
Each of the
covenants required to be performed by the Company in the Agreement
on or prior to the date of the Agreement, this Representation Date,
and each such other date as set forth in the Agreement, has been
duly, timely and fully performed in all material respects and each
condition required to be complied with by the Company on or prior
to the date of the Agreement, this Representation Date, and each
such other date as set forth in the Agreement has been duly, timely
and fully complied with in all material respects.
4.
Subsequent to the
date of the most recent financial statements in the Prospectus,
there has been no Material Adverse Effect.
5.
No stop order
suspending the effectiveness of the Registration Statement or of
any part thereof has been issued, and no proceedings for that
purpose have been instituted or are pending or threatened by any
applicable securities or other governmental authority (including,
without limitation, the Commission).
6.
No order suspending
the effectiveness of the Registration Statement or the
qualification or registration of the Placement Shares under the
securities or Blue Sky laws of any jurisdiction are in effect and
no proceeding for such purpose is pending before, or threatened, to
the Company's knowledge or in writing by, any applicable securities
or other governmental authority (including, without limitation, the
Commission).
The
undersigned has executed this Representation Date Certificate as of
the date first written above.
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Monopar
Therapeutics Inc.
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By:
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Name: Xxxxxxxx X.
Xxxxxxxx
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Title:
CEO
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