CONFIDENTIAL
July 20,
2010
CONFIDENTIAL
Xxxx
Capital Partners, LLC
00
Xxxxxxxxx Xxxxx
Newport
Beach, CA 92660
Ladies
and Gentlemen:
This
letter (the “Agreement”)
constitutes the agreement between Xxxx Capital Partners, LLC (in such capacity,
“Xxxx” or the
“Placement
Agent”) and PharmAthene, Inc. (the
“Company”) that Xxxx shall
serve, on a “best efforts” basis, as the exclusive placement agent for the
Company in connection with the proposed public offering placement (the “Placement”) of
registered securities of the Company, consisting of shares (the “Shares”) of the
Company’s common stock, par value $0.0001 per share (the “Common Stock”) and
warrants (the “Warrants”) to
purchase shares of the Company’s Common Stock. The terms of such
Placement and the Securities shall be mutually agreed upon by the Company and
the purchasers (each a “Purchaser” and,
collectively, the “Purchasers”), and
nothing herein constitutes an agreement of the parties that Xxxx would have the
power or authority to bind the Company or any Purchaser or an obligation for the
Company to issue any Securities or complete the Placement. The shares
of Common Stock issuable upon exercise of the Warrants are hereinafter referred
to as the “Warrant
Shares” and the Shares, the Warrants and the Warrant Shares are
hereinafter referred to as the “Securities.” The
sale of the Securities shall be made pursuant to securities purchase agreement
in the form included as Exhibit A hereto (the
“Purchase
Agreement”), on the terms described on Exhibit B
hereto. The Warrants shall be in substantially the form of Exhibit A
to the Purchase Agreement. The Securities are more fully described in
the Prospectus Supplement (as defined below). This Agreement and the documents
executed and delivered by the Company and the Purchasers in connection with the
Placement shall be collectively referred to herein as the “Transaction
Documents.” The date of the closing of the Placement shall be
referred to herein as the “Closing
Date.” The Company expressly acknowledges and agrees that
Roth’s obligations hereunder are on a commercially reasonable best efforts basis
only and that the execution of this Agreement neither constitutes a commitment
by Xxxx to purchase the Securities nor ensures the successful placement of the
Securities or any portion thereof.
SECTION
1. COMPENSATION AND OTHER
FEES.
As
compensation for the services provided by Xxxx hereunder, the Company agrees as
follows:
(A) As
compensation for services rendered, on the Closing Date the Company shall (i)
pay to the Placement Agent by wire transfer of immediately available funds to an
account or accounts designated by the Placement Agent, a cash fee (the “Placement Agent’s
Fee”) equal to seven percent (7.0%) of the gross proceeds received by the
Company from the sale of the Shares and Warrants on such Closing Date, less a
financial advisory fee of $20,475 payable by the Company to Noble Financial
Group, Inc.
(B) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay or reimburse if paid by the Placement
Agent all actual out-of-pocket costs and expenses incident to the performance of
the obligations of the Company under this Agreement and in connection with the
transactions contemplated hereby, including but not limited to costs and
expenses of or relating to (i) the preparation, printing, filing, delivery and
shipping of the Registration Statement and the Prospectus Supplement, and any
amendment or supplement to any of the foregoing and the printing and furnishing
of copies of each thereof to the Placement Agent and dealers (including costs of
mailing and shipment), (ii) the registration, issue, sale and delivery of the
Securities including any stock or transfer taxes and stamp or similar duties
payable upon the sale, issuance or delivery of the Securities and the printing,
delivery, and shipping of the certificates representing the Securities, (iii)
the fees and expenses of any transfer agent or registrar for the Shares and
Warrant Shares, (iv) the filing fees required to be paid by the Placement Agent
or the Company with the Financial Industry Regulatory Authority (“FINRA”) (including
all COBRADesk fees), (v) fees, disbursements and other charges of counsel to the
Company (vi) listing fees, if any, for the listing or quotation of the Shares
and Warrant Shares on the NYSE Amex, (vii) fees and disbursements of the
Company’s auditor, and (viii) reasonable fees and disbursements of counsel to
the Placement Agent. Notwithstanding the foregoing, the expenses of the
Placement Agent (other than the filing fees set forth in clause (iv) above),
including attorneys fees and expenses, which the Company shall be obligated to
reimburse hereunder shall not exceed (x) $15,000 for all expenses other than
attorneys fees and expenses and (y) $30,000 for the Placement Agent’s attorneys
fees and expenses. In no event shall the total compensation payable
to the Placement Agent and any other FINRA member or independent broker-dealer
(including any financial advisor) in connection with the sale of the Securities
(including any expense reimbursement) exceed 8% of the gross proceeds received
by the Company from the sale of the Securities.
SECTION
2. REGISTRATION
STATEMENT.
The
Company represents and warrants to, and agrees with, the Placement Agent as
follows:
(A) The
Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (Registration File No. 333-156997) under the
Securities Act of 1933, as amended (the “Securities Act”),
which became effective on February 12, 2009, for the registration under the
Securities Act of the Shares and Warrants. At the time of
such filing, the Company met the requirements of Form S-3 under the
Securities Act. Such registration statement meets the requirements
set forth in Rule 415(a)(1)(x) under the Securities Act and complies with
said rule. The Company will file with the Commission, pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the
“Rules and
Regulations”) of the Commission promulgated under this Act, a supplement
to the form of prospectus included in such registration statement relating to
the placement of the Shares and Warrants and the plan of distribution
thereof and has advised the Placement Agent of all further information
(financial and other) with respect to the Company required to be set forth
therein. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the “Registration
Statement”; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the “Base Prospectus”; and
the supplemented form of prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424(b) (including the Base Prospectus as so
supplemented), is hereinafter called the “Prospectus
Supplement.” Any reference in this Agreement to the
Registration Statement, the Base Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or
before the date of this Agreement or the issue date of the Base Prospectus or
the Prospectus Supplement, as the case may be; and any reference in this
Agreement to the terms “amend,” “amendment” or “supplement,” with
respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement, shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement or the issue date of the
Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference. All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the
Registration Statement, the Base Prospectus or the Prospectus Supplement (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, or is
deemed to be, incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop
order suspending the effectiveness of the Registration Statement or the use of
the Base Prospectus has been issued, and no proceeding for any such purpose is
pending or has been initiated or, to the Company's knowledge, is threatened by
the Commission. For purposes of this Agreement, “Time of Sale
Prospectus” means the preliminary prospectus supplement used in
connection with the Placement, including any documents incorporated by reference
therein.
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(B) The
Registration Statement (and any further documents to be filed in connection
therewith by the Company with the Commission) contains all exhibits and
schedules as required by the Securities Act. The Registration
Statement, at the time it became effective, complied in all material respects
with the Securities Act and the applicable Rules and Regulations and did
not—and, as amended or supplemented, if applicable, will not, as of the
effective date of such amendment or supplement, contain any 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; provided, however, that this
representation and warranty shall not apply to any written statements or
omissions made in reliance upon information furnished to the Company by Xxxx
expressly for use therein. The Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, each as of its respective
date, comply in all material respects with the Securities Act and the applicable
Rules and Regulations. Each of the Base Prospectus, the Time of Sale
Prospectus, if any, and the Prospectus Supplement, as amended or supplemented,
did not and will not contain as of the date thereof any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon written information furnished to the Company by Xxxx expressly
for use therein. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the requirements of
the Exchange Act and the applicable Rules and Regulations, and none of such
documents, when filed with the Commission, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein (with respect to Incorporated Documents incorporated by
reference in the Base Prospectus or Prospectus Supplement), in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, the
Time of Sale Prospectus, if any, or Prospectus Supplement, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable Rules and Regulations, as
applicable, and will not contain any 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon written information furnished to the Company by Xxxx expressly
for use therein. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof but
prior to the date hereof that represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed
with the Commission. There are no documents required to be filed with
the Commission in connection with the Placement that (x) have not been filed as
required pursuant to the Securities Act or (y) will not be filed within the
requisite time period. There are no contracts or other documents
required to be described in the Base Prospectus, the Time of Sale Prospectus, if
any, or Prospectus Supplement, or to be filed as exhibits or schedules to the
Registration Statement, that have not been described or filed as
required.
(C) The
Company has delivered, or will as promptly as practicable deliver, to the
Placement Agent complete conformed copies of the Registration Statement and of
each consent and certificate of experts, as applicable, filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), the Base
Prospectus, the Time of Sale Prospectus and the Prospectus Supplement, as
amended or supplemented, in such quantities and at such places as the Placement
Agent reasonably requests. Neither the Company nor any of its directors and
officers has distributed, and none of them will distribute, prior to the Closing
Date, any offering material in connection with the offering and sale of the
Shares and Warrants other than the Base Prospectus, the Time of Sale Prospectus,
the Prospectus Supplement, the Registration Statement, copies of the documents
incorporated by reference therein and any other materials permitted by the
Securities Act.
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SECTION
3. REPRESENTATIONS AND
WARRANTIES.
Except as
set forth under the corresponding section of the Disclosure Schedules, which
shall be deemed a part hereof, the Company hereby makes the representations and
warranties set forth below to the Placement Agent.
(A) Organization and
Qualification. All of the direct and indirect subsidiaries
(individually, a “Subsidiary”) of the
Company are set forth on Schedule 3(A). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each
Subsidiary free and clear of any “Liens” (which, for
purposes of this Agreement, shall mean a lien, charge, security interest,
encumbrance, right of first refusal, preemptive right or other restriction), and
all the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. Each of the
Company and each Subsidiary is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted. Neither the Company nor
any Subsidiary is in violation or default of any of the provisions of its
respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good standing as a
foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in (i) a
material adverse effect on the legality, validity or enforceability of any
Transaction Document, (ii) a material adverse effect on the results of
operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform, in any material respect and on a
timely basis, its obligations under any Transaction Document (any of clauses
(i), (ii) or (iii), a “Material Adverse
Effect”, and no “Proceeding” (which,
for purposes of this Agreement, shall mean any action, claim, suit,
investigation or proceeding (including, without limitation, an investigation or
partial proceeding, such as a deposition), whether commenced or, to the
Company’s knowledge, threatened) has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification.
(B) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company, and no further action is required by the
Company, the Company’s board of directors (the “Board of Directors”)
or the Company’s stockholders in connection therewith other than in connection
with the Required Approvals (as defined in subsection 3(D)
below). Each Transaction Document has been (or upon delivery will
have been) duly executed by the Company and, when delivered in accordance with
the terms hereof and thereof, will constitute the valid and binding obligation
of the Company enforceable against the Company in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
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(C) No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company, the issuance and sale of
the Shares and Warrants and the consummation by the Company of the
other transactions contemplated hereby and thereby do not and will not (i)
conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, or conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default)
under, any agreement, credit facility, debt or other instrument (evidencing a
Company or Subsidiary debt or otherwise) or other understanding to which the
Company or any Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected, except,
in the case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse Effect.
(D) Filings, Consents and
Approvals. The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind, including, without limitation, any Trading Market
(as defined below) (collectively, “Persons”) in
connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than such filings as are required to be made under
applicable federal and state securities laws (collectively, the “Required
Approvals”).
(E) Issuance of the Securities;
Registration. The Shares and Warrants are duly authorized and,
when issued and paid for in accordance with the applicable Transaction Documents
(i) the Shares will be duly and validly issued, fully paid and nonassessable,
free and clear of all Liens imposed by the Company and (ii) the Warrants will be
duly and validly issued, free and clear of all Liens imposed by the
Company. The Warrant Shares, when issued in accordance with the terms
of the Warrants, will be validly issued, fully paid and nonassessable, free and
clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to the Transaction Documents. The issuance by
the Company of the Securities has been registered under the Securities Act and
all of the Securities, when issued in accordance with the Transaction Documents
and the plan of distribution described in the Registration Statement, Base
Prospectus and Time of Sale Prospectus, will be freely transferable and tradable
by the Purchasers without restriction (other than any restrictions arising
solely from an act or omission of a Purchaser). The Registration
Statement is effective and available for the issuance of the Securities
thereunder, and the Company has not received any notice that the Commission has
issued or intends to issue a stop order with respect to the Registration
Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently,
or intends or has threatened in writing to do so. The “Plan of
Distribution” section under the Registration Statement, as amended or
supplemented by a post-effective amendment thereto or by the Base Prospectus and
Time of Sale Prospectus, permits the issuance and sale of the Securities as
contemplated hereunder. Upon issuance of the Securities on the terms
set forth in the Purchase Agreement, the Purchasers will have good and
marketable title to such Securities and the Shares will be listed and authorized
for trading on the “Trading Market”
(which, for purposes of this Agreement, shall mean the following markets or
exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the Nasdaq Capital Market, the NYSE Amex, the New York Stock
Exchange, the Nasdaq National Market or the OTC Bulletin
Board).
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(F) Capitalization. The
capitalization of the Company is as set forth on Schedule 3(F). The
Company has not issued any capital stock since its most recently filed periodic
report under the Exchange Act, other than pursuant to the exercise of stock
options under the Company’s stock option plans, the issuance of shares of Common
Stock to employees pursuant to the Company’s employee stock purchase plan and
pursuant to the conversion or exercise of securities exercisable, exchangeable
or convertible into Common Stock (“Common Stock
Equivalents”). No Person has any right of first refusal,
preemptive right, right of participation or any similar right to participate in
the transactions contemplated by the Transaction Documents. Except as described
in the Company’s SEC Reports, there are no outstanding options, warrants, scrip
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or giving any Person any right to subscribe for
or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock or Common Stock
Equivalents, other than as a result of the purchase and sale of
the Shares and Warrants. The issuance and sale of
the Shares and Warrants will not obligate the Company to issue shares
of Common Stock or other securities to any Person (other than the Purchasers)
and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of the
Company are validly issued, fully paid and nonassessable. No
further approval or authorization of any stockholder, the Board of Directors or
others is required for the issuance and sale of the Securities. There
are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company’s
stockholders that are not described in the SEC Reports.
(G) SEC Reports; Financial
Statements. The Company has complied in all material respects
with requirements to file all reports, schedules, forms, statements and other
documents required to be filed by it under the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law to file such
material) (the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein as the
“SEC Reports”)
on a timely basis or has received a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except to the extent that unaudited financial statements may not contain all
footnotes required by GAAP, and such statements fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(H) Material Changes;
Undisclosed Events, Liabilities or Developments. Since the
date of the latest audited financial statements included the SEC Reports, except
as specifically disclosed in a subsequent SEC Report filed prior to the date
hereof, (i) there has been no event, occurrence or development that has had, or
that could reasonably be expected to result in, a Material Adverse Effect, (ii)
the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to
any officer, director or “Affiliate” (defined
as any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the Securities Act), except
pursuant to existing Company stock option plans. As of the date
hereof, the Company does not have pending before the Commission any request for
confidential treatment of information. Except for the issuance of the
Securities contemplated by this Agreement or as set forth on Schedule 3(H), no
event, liability or development has occurred or exists, with respect to the
Company or its Subsidiaries or their respective business, properties, operations
or financial condition, that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made that
has not been publicly disclosed at least one Trading Day (defined as a day on
which the applicable Trading Market is open for trading) prior to the date on
which this representation is made.
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(I) Litigation. There
is no action, suit, inquiry, notice of violation, Proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the
Company, any Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”) (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Transaction Documents or the Securities or (ii) could, if there were an
unfavorable decision, reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or
officer thereof, is or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty. There has not been, and, to the knowledge
of the Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director or officer of
the Company. No executive officer, to the knowledge of the Company,
is, or is now expected to be, in violation of any material term of any
employment contract, confidentiality, disclosure or proprietary information
agreement or non-competition agreement, or any other contract or agreement or
any restrictive covenant, and the continued employment of each such executive
officer does not subject the Company or any of its Subsidiaries to any material
liability with respect to any of the foregoing matters. The Company
and its Subsidiaries are in compliance with all U.S. federal, state, local and
foreign laws and regulations relating to employment and employment practices,
terms and conditions of employment and wages and hours, except where the failure
to be in compliance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(J)
Labor
Relations. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship
with the Company, neither the Company nor any of its Subsidiaries is a party to
a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. No material
labor dispute exists or, to the knowledge of the Company, is imminent with
respect to any of the employees of the Company that could reasonably be expected
to result in a Material Adverse Effect.
(K)
Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including, without
limitation, all foreign, federal, state and local laws applicable to its
business and all such laws that affect the environment, except in each case as
could not reasonably be expected to have a Material Adverse Effect.
(L) Regulatory
Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits could not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material
Permit.
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(M) Title to
Assets. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them that is
material to the business of the Company and the Subsidiaries and good and
marketable title to all personal property owned by them that is material to the
business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment of
federal, state or other taxes, the payment of which is neither delinquent nor
subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases of which the Company and the Subsidiaries are
in compliance with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such property and
building by the Company and the Subsidiaries.
(N) Patents and
Trademarks. Except as set forth in the SEC Reports, to its
knowledge the Company and the Subsidiaries have, or have rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, trade secrets, inventions, copyrights, licenses and other similar
intellectual property rights necessary or material for use in connection with
their respective businesses as described in the SEC Reports and which the
failure to so have could reasonably be expected to have a Material Adverse
Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received
a notice (written or otherwise) from a third party that the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon
the rights of such third party. The Company also has
no knowledge of existing infringement by another Person of
any of the Intellectual Property Rights of the Company or its
Subsidiaries. The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy and confidentiality of their
confidential information, except where the failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(O) Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate subscription amount under the
Transaction Documents. To the knowledge of the Company, such
insurance contracts and policies are accurate and complete. Neither
the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.
(P) Transactions with Affiliates
and Employees. Except as set forth in the SEC Reports, none of
the officers, directors or, to the knowledge of the Company, employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner, other than (i) for payment of
salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) for other employee benefits,
including stock option agreements under any stock option plan of the
Company.
(Q) Xxxxxxxx-Xxxxx. The
Company is in material compliance with all provisions of the Xxxxxxxx-Xxxxx Act
of 2002 that are applicable to it as of the date hereof and the Closing
Date.
Page
8
(R) Certain
Fees. Except as otherwise provided in this Agreement, no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. The Purchasers shall have
no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this section that
may be due in connection with the transactions contemplated by the Transaction
Documents.
(S) Trading Market
Rules. The issuance and sale of the Shares and
Warrants hereunder does not contravene the rules and regulations of the Trading
Market.
(T) Investment
Company. The Company is not, is not an Affiliate of and,
immediately after receipt of payment for the Shares and Warrants,
will not be, or be an Affiliate of, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
(U) Registration
Rights. No Person has any right to cause the Company to effect
the registration under the Securities Act of any securities of the Company as a
result of the transactions contemplated by this Agreement.
(V) Listing and Maintenance
Requirements. The Company’s Common Stock is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has
taken no action designed to, or that to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act, nor has the Company received any notification that the Commission is
contemplating terminating such registration. The Company has not, in
the twelve (12) months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or quoted to the
effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is in compliance
with all such listing and maintenance requirements. The issuance and
listing of the Shares on the NYSE Amex requires no further approval of the
Company’s shareholders.
(W) Application of Takeover
Protections. The Company and the Board of Directors will take
all action the Board of Directors determines appropriate, if any, in order to
render inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s Certificate of Incorporation (or
similar charter documents) or the laws of its state of incorporation that could
reasonably be expected to become applicable to the Purchasers as a result of the
Purchasers and the Company fulfilling their obligations or exercising their
rights under the Transaction Documents, including, without limitation, as a
result of the Company’s issuance of the Shares and Warrants and the
Purchasers’ ownership of the Shares and Warrants.
(X) Tax
Status. Except for matters that would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Company and each Subsidiary has filed all necessary federal, state
and foreign income and franchise tax returns and has paid or accrued all taxes
shown as due thereon, and the Company has no knowledge of a tax deficiency that
has been asserted or threatened against the Company or any
Subsidiary.
(Y) Foreign Corrupt
Practices. Neither the Company nor, to the knowledge of the
Company, any agent or other person acting on behalf of the Company has (i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of
which the Company is aware) that is in violation of law or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as
amended.
Page
9
(Z) Accountants. The
Company’s independent registered public accounting firm is identified on
Schedule 3(Z) of the Disclosure Schedule and such firm is a registered public
accounting firm as required by the Securities Act.
(AA) Regulation M
Compliance. The Company has not, and to its knowledge no one
acting on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities (other than for the placement
agent’s placement of the Securities) or (iii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(BB) FINRA
Affiliations. There are no affiliations with any FINRA member
firm among the Company’s officers, directors or, to the Company’s knowledge, any
five percent (5%) or greater stockholder of the Company, except as set forth in
the Base Prospectus.
SECTION
4. INDEMNIFICATION. The
Company agrees to the indemnification and other agreements set forth in the
Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein
by reference and shall survive the termination or expiration of this
Agreement.
SECTION
5. ENGAGEMENT
TERM. Roth’s engagement hereunder will be for the period of
forty-five (45) days. Notwithstanding anything to the contrary
contained herein, the provisions concerning confidentiality, indemnification,
contribution and the Company’s obligations to pay fees actually earned and
reimburse actual expenses incurred and payable contained herein and the
Company’s obligations contained in the Indemnification Provisions will survive
any expiration or termination of this Agreement. Xxxx agrees not to
use any confidential information concerning the Company provided to them by the
Company for any purposes other than those contemplated under this
Agreement.
SECTION
6. XXXX
INFORMATION. The Company agrees that any information or advice
rendered by Xxxx in connection with this engagement is for the confidential use
of the Company only in their evaluation of the Placement and that, except as
otherwise required by law, the Company will not disclose or otherwise refer to
such advice or information in any manner without Roth’s prior written consent.
Notwithstanding the foregoing, to the extent required, the Company may file this
Agreement and any Transaction Document with the Commission in any filing made by
the Company pursuant to the Securities Act, the Exchange Act or the rules and
regulations thereunder, and may refer to Roth’s engagement hereunder and the
terms of this Agreement in any such filing (including any exhibit
thereto).
SECTION
7. NO FIDUCIARY
RELATIONSHIP. This Agreement does not create, and shall not be
construed as creating rights enforceable by any person or entity not a party
hereto, except those entitled hereto by virtue of the Indemnification Provisions
hereof. The Company acknowledges and agrees that Xxxx is not and
shall not be construed as a fiduciary of the Company and shall have no duties or
liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of Xxxx hereunder, all of
which duties and liabilities are hereby expressly waived.
Page
10
SECTION
8. CLOSING. The
obligations of the Placement Agent, and the closing of the sale of
the Shares and Warrants hereunder are subject to the accuracy, when
made and on the Closing Date, of the representations and warranties on the part
of the Company and its Subsidiaries contained herein, to the accuracy of the
statements of the Company and its Subsidiaries made in any certificates pursuant
to the provisions hereof, to the performance by the Company and its Subsidiaries
of their obligations hereunder, and to each of the following additional terms
and conditions:
(A) No
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the
part of the Commission (to be included in the Registration Statement, the Base
Prospectus or the Prospectus Supplement or otherwise) shall have been complied
with to the reasonable satisfaction of the Placement Agent.
(B) The
Placement Agent shall not have discovered and disclosed to the Company on or
prior to the Closing Date that the Registration Statement, the Base Prospectus
or the Prospectus Supplement or any amendment or supplement thereto contains an
untrue statement of a fact which is material or omits to state any fact which is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(C) All
corporate proceedings and other legal matters incident to the authorization,
form, execution, delivery and validity of each of this Agreement, the
Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(D) The
Placement Agent shall have received from outside counsel to the Company such
counsel’s written opinion, addressed to the Placement Agent and the Purchasers
dated as of the Closing Date, in form and substance reasonably satisfactory to
the Placement Agent and a customary “negative assurances” statement from such
counsel.
(E) (i)
Neither the Company nor any of its Subsidiaries shall have sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the Base Prospectus, any loss or interference with its business
from fire, explosion, flood, terrorist act or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in or contemplated by the Base
Prospectus, and (ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
business, general affairs, management, financial position, stockholders’ equity
or results of operations of the Company and its Subsidiaries, otherwise than as
set forth in or contemplated by the Base Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the Placement
Agent, so material and adverse as to make it impracticable or inadvisable to
proceed with the sale or delivery of the Shares and Warrants on the
terms and in the manner contemplated by the Base Prospectus, the Time of Sale
Prospectus and the Prospectus Supplement.
(F) The
Common Stock is registered under the Exchange Act, and, as of the Closing Date,
the Shares shall be listed and admitted and authorized for trading on the NYSE
Amex, and satisfactory evidence of such actions shall have been provided to the
Placement Agent. The Company shall have taken no action designed to
terminate, or likely to have the effect of terminating, the registration of the
Common Stock under the Exchange Act or delist or suspend, or likely to have the
effect of delisting or suspending, from trading the Common Stock from the NYSE
Amex, nor has the Company received any information suggesting that the
Commission or the NYSE Amex is contemplating terminating such registration or
listing.
Page
11
(G) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market or the NYSE Amex or in the over-the-counter
market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum prices
or maximum ranges for prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by federal or state authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in
the United States, (iii) the United States shall have become engaged in
hostilities in which it is not currently engaged or the subject of an act of
terrorism, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred any other calamity or
crisis or any change in general economic, political or financial conditions in
the United States or elsewhere, if the effect of any such event in clause (iii)
or (iv) makes it, in the reasonable judgment of the Placement Agent,
impracticable or inadvisable to proceed with the sale or delivery of
the Shares and Warrants on the terms and in the manner contemplated
by the Base Prospectus, the Time of Sale Prospectus and the Prospectus
Supplement.
(H) No
action shall have been taken, and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body, that
would, as of the Closing Date, prevent the issuance or sale of
the Shares and Warrants or materially and adversely affect or
potentially materially and adversely affect the business or operations of the
Company; and no injunction, restraining order or order of any other nature by
any federal or state court of competent jurisdiction shall have been issued as
of the Closing Date that would prevent the issuance or sale of
the Shares and Warrants or materially and adversely affect or
potentially materially and adversely affect the business or operations of the
Company.
(I) The
Company shall have prepared and filed with the Commission a Current Report on
Form 8-K with respect to the Placement, including as an exhibit thereto this
Agreement.
(J) The
Company shall have entered into subscription agreements with each of the
Purchasers and such agreements shall be in full force and effect and shall
contain representations and warranties of the Company as agreed between the
Company and the Purchasers.
(K)
FINRA shall have raised no objection to the fairness and reasonableness of
the terms and arrangements of this Agreement. In addition, the
Company shall, if requested by the Placement Agent, make or authorize Placement
Agent’s counsel to make, on the Company’s behalf, an Issuer Filing with FINRA
pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay
all filing fees required in connection therewith.
(L) Prior
to the Closing Date, the Company shall have furnished to the Placement Agent
such further information, certificates and documents as the Placement Agent may
reasonably request.
All
opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Placement Agent.
Page
12
SECTION
9. GOVERNING
LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in such State. This Agreement may not be
assigned by either party without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective successors and permitted
assigns. Any right
to trial by jury with respect to any dispute arising under this Agreement or any
transaction or conduct in connection herewith is waived. Any
dispute arising under this Agreement may be brought into the courts of the State
of New York or into the Federal Court located in New York, New York, and, by
execution and delivery of this Agreement, the Company hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of aforesaid courts. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by delivering a copy thereof via overnight delivery
(with evidence of delivery) 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. If either party shall commence an
action or proceeding to enforce any provisions of a Transaction Document, then
the prevailing party in such action or proceeding shall be reimbursed by the
other party for its attorneys fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
SECTION
10. ENTIRE
AGREEMENT/MISC. This Agreement (including the attached
Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings, relating to the subject matter hereof. If any
provision of this Agreement is determined to be invalid or unenforceable in any
respect, such determination will not affect such provision in any other respect
or any other provision of this Agreement, which will remain in full force and
effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both Xxxx and the
Company. The representations, warranties, agreements and covenants
contained herein shall survive the closing of the Placement and delivery and/or
exercise of the Shares and Warrants, as applicable. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or a .pdf format file, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or
..pdf signature page were an original thereof.
SECTION
11. NOTICES. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a
business day, (b) the next business day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number on
the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications
shall be as set forth on the signature pages hereto.
Page
13
Please
confirm that the foregoing correctly sets forth our agreement by signing and
returning to Xxxx the enclosed copy of this Agreement.
|
Very
truly yours,
|
||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx XXX
|
|
|
Name:
Xxxxxxx X. Xxxxxxxx XXX
|
||
|
Title:
Sr. Vice President & CFO
|
||
|
Address for
notice:
|
|
Xxx
Xxxx Xxxxx
|
|
Suite
450
|
|
Annapolis,
MD 21401
|
|
Fax
(000) 000-0000
|
|
Attention:
General Counsel
|
|
With a copy
to:
|
|
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
|
|
0000
Xxxxxx xx xxx Xxxxxxxx
|
|
New
York, NY 10020
|
|
Fax
(000) 000-0000
|
|
Attention: Xxxxxxx
X. Xxxxxx
|
Page
14
|
Accepted
and Agreed to as of
|
||
|
the
date first written above:
|
||
|
XXXX
CAPITAL PARTNERS, LLC
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx, R. Ph. | |
|
Name:
Xxxxxxx Xxxxxxxx, R. Ph.
|
||
|
Title:
Managing Director
|
||
|
Address
for notice:
|
||
|
Xxxx
Capital Partners, LLC
|
||
|
00
Xxxxxxxxx Xxxxx
|
||
|
Newport
Beach, CA 92660
|
||
|
Fax:
000-000-0000
|
||
|
Attention: Xxxxx
Xxxxxxxx
|
||
|
with a copy
to:
|
||
|
Xxxxxxxxxx
Xxxxxxx PC
|
||
|
0000
Xxxxxx xx xxx Xxxxxxxx
|
||
|
New
York, New York 10020
|
||
|
Fax:
000-000-0000
|
||
|
Attention:
Xxxx X.
Xxxxxxxx
|
||
Page
15
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In connection with the engagement of
Xxxx Capital Partners, LLC (“Xxxx”), by PharmAthene, Inc.
(the “Company”), pursuant
to a letter agreement dated July 20, 2010, between the Company and Xxxx, as it
may be amended from time to time in writing (the “Agreement”), the
Company hereby agrees as follows:
|
1.
|
To
the extent permitted by law, the Company will indemnify Xxxx and its
affiliates, stockholders, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended) (each an “indemnified party”) against all losses, claims,
damages, expenses and liabilities, as the same are incurred (including the
reasonable fees and expenses of counsel), relating to or arising out of
its activities hereunder or pursuant to the Agreement, except to the
extent that any losses, claims, damages, expenses or liabilities (or
actions in respect thereof) are found in a final judgment (not subject to
appeal) by a court of law to have resulted primarily and directly from
Roth’s willful misconduct or gross negligence in performing the services
described herein.
|
|
2.
|
Promptly
after receipt by an indemnified party of notice of any claim or the
commencement of any action or proceeding with respect to which the
Indemnified party is entitled to indemnity hereunder, the indemnified
party will notify the Company in writing of such claim or of the
commencement of such action or proceeding, and the Company will assume the
defense of such action or proceeding and will employ counsel reasonably
satisfactory to the indemnified party and will pay the fees and expenses
of such counsel. Notwithstanding the preceding sentence, the
indemnified party will be entitled to employ counsel separate from counsel
for the Company and from any other party in such action if counsel for the
indemnified party reasonably determines that it would be inappropriate
under the applicable rules of professional responsibility for the same
counsel to represent both the Company and such indemnified
party. In such event, the reasonable fees and disbursements of
no more than one such separate counsel will be paid by the
Company. The Company will have the exclusive right to settle
the claim or proceeding; provided that the
Company will not settle any such claim, action or proceeding without the
prior written consent of the indemnified party, which consent will not be
unreasonably withheld.
|
|
3.
|
The
Company agrees to notify Xxxx promptly of the assertion against it or any
other person of any claim or the commencement of any action or proceeding
relating to a transaction contemplated by the
Agreement.
|
|
4.
|
If
for any reason the foregoing indemnity is unavailable to an indemnified
party or insufficient to hold the indemnified party harmless, then the
Company shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect not only the relative benefits
received by the Company, on the one hand, and the indemnified party, on
the other, but also the relative fault of the Company, on the one hand,
and the indemnified party, on the other, that resulted in such losses,
claims, damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in
respect of losses, claims, damages and liabilities referred to above shall
be deemed to include any legal or other fees and expenses incurred in
defending any litigation, proceeding or other action or
claim. Notwithstanding the provisions hereof, Roth’s share of
the liability hereunder shall not be in excess of the amount of fees
actually received, or to be received, by Xxxx under the Agreement
(excluding any amounts received as reimbursement of expenses incurred by
Xxxx).
|
|
5.
|
These
Indemnification Provisions shall remain in full force and effect whether
or not the transaction contemplated by the Agreement is completed, shall
survive the termination of the Agreement and shall be in addition to any
liability that the Company might otherwise have to any indemnified party
under the Agreement or otherwise.
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxx XXX
|
|
|
Name:
Xxxxxxx X. Xxxxxxxx XXX
|
||
|
Title:
Sr. Vice President & CFO
|
||
Accepted
and Agreed to as of
the date
first written above:
|
XXXX
CAPITAL PARTNERS, LLC
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx, R. Ph. | |
|
Name:
Xxxxxxx Xxxxxxxx, R. Ph.
|
||
|
Title:
Managing
Director
|
||
Exhibit
A
Form
of Securities Purchase Agreement
Exhibit
B
Pricing
Information
Number of
Shares to be Sold: 2,785,714
Number of
Warrants to be Sold: 1,323,214
Offering
Price: $1.40
Exercise
Price of Warrants: $1.63
Aggregate
Placement Agency Fee: $273,0001
Exhibit
C
Form
of Warrant
