SELLING AGENCY AGREEMENT between YOUNGEVITY INTERNATIONAL, INC. (the “Company”) and TRIPOINT GLOBAL EQUITIES, LLC (the “Selling Agent”) YOUNGEVITY INTERNATIONAL, INC. Maximum: [ ● ] Shares of Series B Convertible Preferred Stock Convertible into [ ● ]...
Exhibit 1.3
between
YOUNGEVITY INTERNATIONAL, INC. (the
“Company”)
and
TRIPOINT GLOBAL EQUITIES, LLC (the “Selling
Agent”)
Maximum: [ ● ] Shares of Series B Convertible Preferred
Stock
Convertible into [ ● ] Shares of Common Stock
[ ], 2018
Tripoint
Global Equities, LLC
0000
Xxxxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000
Ladies
and Gentlemen:
This
agreement (the “Agreement”) constitutes the agreement
between Youngevity International, Inc., a Delaware corporation (the
“Company”), on the one hand, and TriPoint Global
Equities, LLC and its online division, Banq®, as Selling Agent
(collectively, the “Selling Agent”), on the other hand,
pursuant to which the Selling Agent shall serve as agent for the
Company in connection with the proposed Offering (the
“Offering”) on a “best efforts” basis of up
to a maximum offering amount of $10,000,000 of registered shares of
Series B Convertible Preferred Stock (the “Preferred
Stock”), convertible into common stock of the Company, par
value $0.001 per share (the “Common Stock”, together
with the Preferred Stock, the “Securities”) to various
investors (each an “Investor” and collectively, the
“Investors”).
The
Company hereby confirms its agreement with the Selling Agent
concerning the purchase and sale of the Shares, as
follows:
(a) On
the basis of the representations, warranties and agreements of the
Company herein contained, and subject to all the terms and
conditions of this Agreement, the Selling Agent shall be the
exclusive Selling Agent in connection with the Offering, which
shall be undertaken pursuant to the Company’s Registration
Statement (as defined below), with the terms of such Offering to be
subject to market conditions and negotiations between the Company
and the Selling Agent. The Selling Agent will act on a best efforts
basis and the Company agrees and acknowledges that there is no
guarantee of the successful sale of the Securities, or any portion
thereof, in the prospective Offering. Under no circumstances will
the Selling Agent or any of its respective “Affiliates”
(as defined below) be obligated to financially underwrite or
purchase any of the Securities for its own account or otherwise
provide any financing. The Selling Agent shall act solely as the
Company’s agent and not as principal. The Selling Agent shall
have no authority to bind the Company with respect to any
prospective offer to purchase Securities and the Company shall have
the sole right to accept offers to purchase Securities and may
reject any such offer, in whole or in part. Subject to the
Company’s written consent, which consent shall not be
unreasonably withheld, conditioned, or delayed, the Selling Agent
may (i) create a selling syndicate of additional Selling Agents for
the Offering comprised of broker-dealers who are members of the
Financial Industry Regulatory Authority, Inc. (“FINRA”)
and/or (ii) rely on such soliciting dealers who are FINRA members
to participate in placing a portion of the Offering. The Selling
Agent may also retain other brokers or dealers to act as sub-agents
or selected dealers on their behalf in connection with the
Offering. Subject to the terms and conditions hereof, payment of
the purchase price for, and delivery of, the Securities shall be
made at each closing (the “Closing” and the date on
which each Closing occurs, the “Closing Date”). As
compensation for services rendered, on the Closing Date, the
Company shall pay to the Selling Agent the fees and expenses set
forth below:
(i) Selling
Agent’s Commissions. The Selling Agent’s
commission in cash (the “Cash Fee”) equal to 4% of the
gross proceeds received by the Company from the sale of the
Securities at the Closing, which such Cash Fee will be paid to and
allocated by the Selling Agent among the selling syndicate and
soliciting dealers in its sole discretion, if
applicable.
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(ii) Selling
Agent’s Warrants. On each Closing, the Company will
issue to the Selling Agent (and/or its designee) warrants to
purchase that number of shares of Common Stock equal to five
percent (5%) of the shares of Common Stock underlying the Preferred
Stock issued and sold by the Company on such Closing at Closing and
each Subsequent Closing (adjusted upward to the nearest whole
share) (the “Selling Agent’s Warrants”). The
Selling Agent’s Warrants shall be in the form of Exhibit A
attached hereto. The Selling Agent’s Warrants shall have an
exercise price per share equal to one hundred twenty percent (120%)
of the price per Share as shown on the cover page of the Final
Prospectus (as defined below). The Selling Agent’s Warrants
will be exercisable for a term of five years beginning on the
Effective Date (as defined below). The Selling Agent understands
and agrees that there are significant restrictions pursuant to
Financial Industry Regulatory Authority (“FINRA”) Rule
5110 against transferring the Selling Agent’s Warrants and
the underlying shares of Common Stock during the one hundred eighty
(180) days after the Effective Date and by its acceptance thereof
shall agree that it will not sell, transfer, assign, pledge or
hypothecate the Selling Agent’s Warrants, or any portion
thereof, or be the subject of any hedging, short sale, derivative,
put or call transaction that would result in the effective economic
disposition of such securities for a period of one hundred eighty
(180) days following the Effective Date to anyone other than (i) a
selling agent or Dealer in connection with the offering
contemplated hereby or (ii) a bona fide officer or partner of the
Selling Agent or of any Selling Agent or Dealer; and only if any
such transferee agrees to the foregoing lock-up
restrictions.
Delivery of the
Selling Agent’s Warrant Agreement shall be made on the
Closing Date and shall be issued in the name or names and in such
authorized denominations as the Selling Agent may
request.
(iii) Expenses.
Whether or not the transactions contemplated by this Agreement and
the Registration Statement are consummated or this Agreement is
terminated, the Company hereby agrees to pay all costs and expenses
incident to the Offering, including the following:
A.
all
fees and disbursements of the
Company’s legal counsel, accountants, and other professionals
engaged by the Company;
B.
all fees and expenses incurred in the production of
Offering documents, including design, printing, photograph, and
written material procurement costs;
C.
all
filing fees, including those charged by FINRA;
D.
all reasonable
travel expenses of the Company's officers, directors and employees
and any other expense of the Company or the Selling Agent incurred
in connection with attending or hosting meetings with prospective
purchasers of the Securities (“Road Show Expenses”);
provided,
however, that all
travel and lodging expenses of the Selling Agent should be limited
to $10,000 and shall be pre-approved by the Company;
E.
a $20,000 due diligence
fee payable to the Selling Agent, with $20,000 paid upon the
execution of the engagement agreement, which will be reimburse to
us to the extent not actually incurred by the Selling Agent;
and
F.
Selling Agent's
Counsel's fees up to $45,000 (the “Legal
Fees”).
In the
event that this Agreement is terminated pursuant to Section 9
hereof, or subsequent to a Material Adverse Change, the Company
will pay all documented out-of-pocket expenses of the Selling Agent
(including but not limited to fees and disbursements of Selling
Agent's Counsel, expenses associated with a due diligence report
and reasonable travel) incurred in connection herewith which shall
be limited to expenses which are actually incurred as allowed under
FINRA Rule 5110 and in any event, the aggregate amount of such
expenses to be reimbursed by the Company shall not exceed
$20,000.
(b) The
term of the Selling Agent’s exclusive engagement will be
until the closing of the Offering in accordance with the
Registration Statement (the “Exclusive Term”);
provided,
however, that a
party hereto may terminate the engagement with respect to itself at
any time upon 15 days written notice to the other party, or as
practical as possible. Notwithstanding anything to the contrary
contained herein, the provisions concerning confidentiality,
indemnification and contribution contained herein will survive any
expiration or termination of this Agreement, and the
Company’s obligation to pay fees actually earned and payable
and to reimburse expenses actually incurred and reimbursable
pursuant to Section 1 hereof and which are permitted to be
reimbursed under FINRA Rule 5110(f)(2)(D), will survive any
expiration or termination of this Agreement. Nothing in this
Agreement shall be construed to limit the ability of the Selling
Agent or their respective Affiliates to pursue, investigate,
analyze, invest in, or engage in investment banking, financial
advisory or any other business relationship with Persons (as
defined below) other than the Company. As used herein (i)
“Persons” means an individual or corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of
any kind and (ii) “Affiliate” means any Person that,
directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the
Securities Act of 1933, as amended (the “Securities
Act”).
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-8-
Section
3.
Delivery and
Payment.
(a)
On or after the
date of this Agreement, the Company, the Selling Agent and
Wilmington Trust (the “Escrow Agent”) will enter into
an Escrow Agreement substantially in the form included as an
exhibit to the Prospectus (the “Escrow Agreement”),
pursuant to which escrow accounts will be established, at the
Company’s expense, for the benefit of those Investors who do
not choose to invest through the Banq® online platform (the
“Escrow Accounts”).
-9-
(b)
Prior to the
initial Closing (as hereinafter defined) of the Offering and any
subsequent Closing, (i) each Investor will execute and deliver a
Purchaser Questionnaire and Subscription Agreement (each, an
“Investor Subscription Agreement”) to the Company and
the Company will make available to the Selling Agent and the Escrow
Agent copies of each such Investor Subscription Agreement; (ii)
each Investor will transfer to the Escrow Account funds in an
amount equal to the price per Share as shown on the cover page of
the Final Prospectus (as hereinafter defined multiplied by the
number of Securities subscribed by such Investor; (iii)
subscription funds received from any Investor will be promptly
transmitted to the Escrow Accounts in compliance with Rule 15c2-4
of the Exchange Act, and (iv) the Escrow Agent will notify the
Company and the Selling Agent in writing as to the balance of the
collected funds in the Escrow Accounts.
(c)
Notwithstanding the
foregoing Section 3(b), Investors that maintain an account with
Banq®, a division of the Selling Agent, may participate in the
Offering without depositing funds with the Escrow Agent, provided
such Investors maintain sufficient funds in their account with
Banq®. Investors who wish to participate in the Offering
through their account with Banq® will be asked to confirm
their respective investment immediately prior to Closing, at which
time each Investor will be required to have funds in its account
sufficient to fund the purchase of any Shares for which it
subscribes in the Offering. At Closing, any amounts subscribed for
will be removed from such Investor’s account and sent
immediately to the account of the Company less any Fees due to the
Selling Agent. Such funds will not be held in a separate escrow
account or otherwise segregated until such time as the Offering is
closed. In addition, selected dealers with clearing agreements
shall provide the Selling Agent with executed indications and
delivery sheets from their customers and shall settle the
transaction with the Selling Agent through DTC on
closing.
(d)
If the Escrow Agent
shall have received written notice from the Company and the Selling
Agent on or before [ ]:00 a.m., New York City time, on [_____],
2018, or at such other time(s) on such other date(s), not more than
thirty (30) days thereafter, as may be agreed upon by the Company
and the Selling Agent (each such date, a “Closing”),
the Escrow Agent will release the balance of the Escrow Accounts
for collection by the Company and the Selling Agent as provided in
the Escrow Agreement and the Company shall deliver the Shares
purchased on such Closing to the Investors, which delivery may be
made through the facilities of the Depository Trust Company
(“DTC”) or via book entry with the Company’s
securities registrar and transfer agent, Pacific Stock Transfer
Company (the “Transfer Agent”). The initial Closing and
any subsequent closing (each, a “Subsequent Closing”)
shall take place at the office of the Selling Agent or such other
location as the Selling Agent and the Company shall mutually agree.
All actions taken at the Closing shall be deemed to have occurred
simultaneously on the date of the Closing and all actions taken at
any Subsequent Closing shall be deemed to have occurred
simultaneously on the date of any such Subsequent
Closing.
(e)
If the Company and
the Selling Agent determine that the offering will not proceed,
then the Escrow Agent will promptly return the funds to the
investors without interest.
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(b) [Intentionally
Omitted].
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-12-
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from
the FINRA. The Registration Statement shall have become
effective and all necessary regulatory and listing approvals shall
have been received not later than 5:30 P.M., New York City time, on
the date of this Agreement, or at such later time and date as shall
have been consented to in writing by the Selling Agent. The
Prospectus (in accordance with Rule 424(b)) and “free writing
prospectus” (as defined in Rule 405 of the Securities Act),
if any, shall have been duly filed with the Commission in a timely
fashion in accordance with the terms thereof. At or prior to the
Closing Date and the actual time of the Closing, no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
no order preventing or suspending the use of the Prospectus shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; no order having the
effect of ceasing or suspending the distribution of the Securities
or any other securities of the Company shall have been issued by
any securities commission, securities regulatory authority or stock
exchange and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company,
contemplated by any securities commission, securities regulatory
authority or stock exchange; all requests for additional
information on the part of the Commission shall have been complied
with; and the FINRA shall have raised no objection to the fairness
and reasonableness of the placement terms and
arrangements.
(i) The
representations and warranties of the Company in this Agreement are
true and correct, as if made on and as of such Closing Date, and
the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing
Date;
(ii) No
stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus has been issued and no
proceedings for that purpose have been instituted or are pending
or, to the Company’s knowledge, threatened under the
Securities Act; no order having the effect of ceasing or suspending
the distribution of the Securities or any other securities of the
Company has been issued by any securities commission, securities
regulatory authority or stock exchange in the United States and no
proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, contemplated by any securities
commission, securities regulatory authority or stock exchange in
the United States;
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(iii) When
the Registration Statement became effective, at the time of sale,
and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement, when it became effective,
contained all material information required to be included therein
by the Securities Act and the applicable rules and regulations of
the Commission thereunder, as the case may be, and in all material
respects conformed to the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement, did not and
does not include 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, in the light of the circumstances
under which they were made, not misleading (provided, however, that the preceding
representations and warranties contained in this paragraph (iii)
shall not apply to any statements or omissions made in reliance
upon and in conformity with the Selling Agent Information) and,
since the effective date of the Registration Statement, there has
occurred no event required by the Securities Act and the rules and
regulations of the Commission thereunder to be set forth in the
Registration Statement which has not been so set forth;
and
(iv) Subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been: (a)
any Material Adverse Effect; (b) any transaction that is material
to the Company and the Subsidiaries taken as a whole, except
transactions entered into in the ordinary course of business; (c)
any obligation, direct or contingent, that is material to the
Company and the Subsidiaries taken as a whole, incurred by the
Company or any Subsidiary, except obligations incurred in the
ordinary course of business; (d) any material change in the capital
stock (except changes thereto resulting from the exercise of
outstanding stock options or warrants or conversion of outstanding
indebtedness into shares of Common Stock) or outstanding
indebtedness of the Company or any Subsidiary (except for the
conversion of such indebtedness into shares of Common Stock); (e)
any dividend or distribution of any kind declared, paid or made on
the Common Stock of the Company; or (f) any loss or damage (whether
or not insured) to the property of the Company or any Subsidiary
which has been sustained or will have been sustained which has a
Material Adverse Effect.
(j) Subsequent
to the execution and delivery of this Agreement or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been
any change in the capital stock or long-term debt of the Company
(other than as described in the Registration Statement or the
Prospectus) or any change or development involving a change,
whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise),
results of operations, shareholders' equity, properties or
prospects of the Company, taken as a whole, including but not
limited to the occurrence of any fire, flood, storm, explosion,
accident, act of war or terrorism or other calamity, the effect of
which, in any such case described above, is, in the sole reasonable
judgment of the Selling Agent, so material and adverse as to make
it impracticable or inadvisable to proceed with the sale of
Securities or Offering as contemplated hereby.
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(k) Subsequent
to the execution and delivery of this Agreement and up to the
Closing Date, there shall not have occurred any of the following:
(i) 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, (ii) the United States shall have become
engaged in hostilities in which it is not currently engaged, 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 (iii) 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 (ii) or (iii) makes it, in the sole judgment
of the Selling Agent, impracticable or inadvisable to proceed with
the sale or delivery of the Securities on the terms and in the
manner contemplated by the Prospectus.
(l) The
Selling Agent shall have received a lock-up agreement from each of
the Company's officers, directors, and greater than 5% holders of
Common Stock (each, a "Lock-Up Party"), duly executed by the
applicable Lock-Up Party, in each case in a form reasonably
acceptable to the Company and the Selling Agent.
(j) FINRA
shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the placement terms
and arrangements. In addition, the Company shall, if requested by
the Selling Agent, make or authorize the Selling Agent's Counsel to
make on the Company's behalf an Issuer Filing with the FINRA
Corporate Financing Department pursuant to FINRA Rule 5110 with
respect to the Registration Statement and pay all filing fees
required in connection therewith.
(k) No
action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any federal,
state or foreign governmental or regulatory authority that would,
as of the Closing Date, prevent the issuance or sale of the
Securities; and no injunction or order of any federal, state or
foreign court shall have been issued that would, as of the Closing
Date, prevent the issuance or sale of the Securities or materially
and adversely affect or potentially materially and adversely affect
the business or operations of the Company.
(l) The
Company and the Selling Agent shall have entered into an escrow
agreement with the Escrow Agent pursuant to which the Investors
shall deposit their subscription funds in an Escrow Account and the
Company and the Selling Agent shall authorize the disbursement of
the funds from the Escrow Account. The Company shall pay the
reasonable fees of the Escrow Agent.
(o) The
Company will enter into a customary subscription agreement with
Investors and will deliver any additional customary certificates or
documents as the Selling Agent deems necessary or appropriate to
consummate the Offering, all of which will be in form and substance
reasonably acceptable to the Selling Agent. The Company agrees that
the Selling Agent may rely upon, and is a third party beneficiary
of, the representations and warranties and applicable covenants set
forth in the purchase agreement with Investors.
If any
of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to
the Selling Agent or to Selling Agent's Counsel, pursuant to this
Section 5, shall not be reasonably satisfactory in form and
substance to the Selling Agent and to Selling Agent's counsel, all
obligations of the Selling Agent hereunder may be cancelled by the
Selling Agent at, or at any time prior to, the consummation of the
Offering. Notice of such cancellation shall be given to the Company
in writing or orally. Any such oral notice shall be confirmed
promptly thereafter in writing.
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(a)
This Agreement shall become effective upon the later of: (i)
receipt by the Selling Agent and the Company of notification of the
effectiveness of the Registration Statement or (ii) the execution
of this Agreement. The Selling Agent shall have the right to
terminate this Agreement at any time upon 15 days written notice to
the Company, or as practical as possible prior to the consummation
of the Closing if: (i) any domestic or international event or act
or occurrence has materially disrupted, or in the opinion of the
Selling Agent will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or
(ii) trading on the NASDAQ Capital Market has been suspended or
made subject to material limitations, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for
securities have been required, on the NASDAQ Capital Market or by
order of the Commission, FINRA or any other governmental authority
having jurisdiction; or (iii) a banking moratorium has been
declared by any state or federal authority or any material
disruption in commercial banking or securities settlement or
clearance services has occurred; or (iv) (A) there has occurred any
outbreak or escalation of hostilities or acts of terrorism
involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there has been any
other calamity or crisis or any change in political, financial or
economic conditions, if the effect of any such event in (A) or (B),
in the reasonable judgment of the Selling Agent, is so material and
adverse that such event makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares on
the terms and in the manner contemplated by the Prospectus. In
addition, this Agreement shall terminate on the earlier of (x) the
date at which $10,000,000 of Series B Preferred Stock has been
sold, or (y) March 31, 2018.
(b) Any
notice of termination pursuant to this Section 9 shall be in
writing.
(c) If
this Agreement shall be terminated pursuant to any of the
provisions hereof, or if the sale of the Securities provided for
herein is not consummated because any condition to the obligations
of the Selling Agent set forth herein is not satisfied or because
of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof,
the Company will, subject to demand by the Selling Agent, reimburse
the Selling Agent for only those out-of-pocket expenses (including
the reasonable fees and expenses of their counsel, and expenses
associated with a due diligence report), actually incurred by the
Selling Agent in connection herewith as allowed under FINRA Rule
5110, less any amounts previously paid by the
Company; provided,
however, that all such expenses, including the costs
and expenses set forth in Section 1(a)(iii) which were actually
paid, shall not exceed $20,000 in the aggregate.
If
to the Selling Agent, then to:
TriPoint Global
Equities, LLC
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx Xxxxxxxxx
With
a copy (which shall not constitute notice) to:
Xxxxxx
Xxxxxxx Xxxxxxx & Li LLC
0000
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxx, Esq.
Fax
No.: (000) 000-0000
If
to the Company:
0000
Xxxxxxx Xxxx
Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
Xxxxxxx
With
a copy (which shall not constitute notice) to:
Gracin
& Xxxxxx, LLP
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxx, Esq.
Fax
No.: (000) 000-0000
Any
party hereto may change the address for receipt of communications
by giving written notice to the others.
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Section
13. Governing
Law Provisions. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without giving effect to any of the conflicts of law principles
which would result in the application of the substantive law of
another jurisdiction. This Agreement shall not be interpreted or
construed with any presumption against the party causing this
Agreement and the other Transaction Documents to be
drafted.
(a) This
Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be
executed in two or more counterparts, each one of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement may not be
amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless
waived in writing by each party whom the condition is meant to
benefit. Section headings herein are for the convenience of the
parties only and shall not affect the construction or
interpretation of this Agreement.
(b) The
Company acknowledges that in connection with the Offering of the
Securities: (i) the Selling Agent has acted at arm’s length,
are not agents of, and owe no fiduciary duties to the Company or
any other person, (ii) the Selling Agent owe the Company only those
duties and obligations set forth in this Agreement and (iii) the
Selling Agent may have interests that differ from those of the
Company. The Company waives to the full extent permitted by
applicable law any claims it may have against any of the Selling
Agent arising from an alleged breach of fiduciary duty in
connection with the offering of the Securities.
[The
remainder of this page has been intentionally left
blank.]
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If the
foregoing is in accordance with your understanding of our
agreement, please sign below whereupon this instrument, along with
all counterparts hereof, shall become a binding agreement in
accordance with its terms.
|
Very
truly yours,
By:
Name:
Title:
|
The
foregoing Selling Agency Agreement is hereby confirmed and accepted
as of the date first above written.
|
TRIPOINT GLOBAL EQUITIES, LLC
By:
Name:
Xxxx Xxxxxxxxx
Title:
Chief Executive Officer
|
|
|
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EXHIBIT A
Form of Selling Agent’s Warrant Agreement
Reference
is made to Exhibit 4.23 to the Registration Statement on Form S-1,
as amended (File Number 333-221847), of the Company, which is
incorporated by reference.
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SCHEDULE
A – INDEMNIFICATION
The
Company hereby agrees to indemnify and hold the Selling Agent, any
selected dealers, sub-agents or other members of a syndicate formed
pursuant to Section 1(a) of the Agreement, each of their respective
officers, directors, principals, employees, affiliates, and
shareholders, and their respective successors and assigns, harmless
from and against any and all loss, claim, damage, liability,
deficiencies, actions, suits, proceedings and costs (including, but
not limited to, reasonable legal fees and other expenses and
reasonable disbursements incurred in connection with investigating,
preparing to defend or defending any action, suit or proceeding,
including any inquiry or investigation, commenced or threatened, or
any claim whatsoever, or in appearing or preparing for appearance
as witness in any proceeding, including any pretrial proceeding
such as a deposition) (collectively, “Losses”) arising
out of, based upon, or in any way related or attributed to, any
breach of a representation, warranty or covenant by the Company
contained in this Agreement. The Company will not, however, be
responsible for any Losses that have resulted from the Selling
Agent Information or the gross negligence or willful misconduct of
any Selling Agent individual or entity seeking indemnification or
contribution hereunder.
The
Selling Agent hereby agrees to indemnify and hold the Company, its
officers, directors, principals, employees, affiliates, and
shareholders, and their respective successors and assigns, harmless
from and against any and all Losses arising out of, based upon, or
in any way related or attributed to, any breach of a
representation, warranty or covenant by the Selling Agent contained
in this Agreement or based upon any Selling Agent Information. The
Selling Agent will not, however, be responsible for any Losses that
have resulted from the gross negligence or willful misconduct of
any individual or entity representing the Company seeking
indemnification or contribution hereunder. In no event shall the
Selling Agent indemnify the Company for any amount in excess of the
fees actually received by such Selling Agent pursuant to the terms
of this Agreement.
If the
Selling Agent or the Company receives written notice of the
commencement of any legal action, suit or proceeding with respect
to which the Selling Agent or the Company is or may be obligated to
provide indemnification pursuant to this Schedule A, the Selling
Agent or the Company, as applicable, shall, within thirty (30) days
of the receipt of such written notice, give the Selling Agent or
the Company, as the case may be, written notice thereof (a
“Claim Notice”). Failure to give such Claim Notice
within such thirty (30) day period shall not constitute a waiver by
the party seeking indemnification (the “Indemnified
Party”), as applicable, of its respective right to indemnity
hereunder with respect to such action, suit or proceeding. Upon
receipt of a Claim Notice from the Indemnified Party with respect
to any claim for indemnification which is based upon a claim made
by a third party (“Third Party Claim”), the Selling
Agent or Company may assume the defense of the Third Party Claim
with counsel of its own choosing, as described below. The Selling
Agent or the Company, as applicable, shall cooperate in the defense
of the Third Party Claim and shall furnish such records,
information and testimony and attend all such conferences,
discovery proceedings, hearings, trial and appeals as may be
reasonably required in connection therewith. The Selling Agent or
the Company, as applicable, shall have the right to employ its own
counsel in any such action, which shall be at the Selling
Agent’s or Company’s expense and which will be for one
counsel only if: (i) the Company and the Selling Agent, as
applicable, shall have mutually agreed in writing to the retention
of such counsel, (ii) the Selling Agent or the Company, as the case
may be, shall have failed in a timely manner to assume the defense
and employ counsel or experts reasonably satisfactory to the
Selling Agent or the Company, as applicable, in such litigation or
proceeding or (iii) the named parties to any such litigation or
proceeding (including any impleaded parties) include the Company
and the Selling Agent, as applicable, and representation of the
Company and the Selling Agent, as applicable, by the same counsel
or experts would, in the reasonable opinion of the Selling Agent or
the Company, as applicable, be inappropriate due to actual or
potential differing interests between the Company and the Selling
Agent, as applicable. The Selling Agent and the Company, as the
case may be, shall not satisfy or settle any Third Party Claim for
which indemnification has been sought and is available hereunder,
without the prior written consent of the other party, which consent
shall not be delayed and which shall not be required if the Selling
Agent, is granted a general release in connection therewith. The
indemnification provisions hereunder shall survive the termination
or expiration of this Agreement.
The
Selling Agent or Company, as applicable, further agrees, upon
demand by the Indemnified Party, to promptly reimburse the
Indemnified Party for, or pay, any reasonable fees, expenses or
disbursements as to which the Indemnified Party has been
indemnified herein with such reimbursement to be made currently as
such fees, expenses or disbursements are incurred by the
Indemnified Party, as applicable. Notwithstanding the provisions of
the aforementioned indemnification, any such reimbursement or
payment by the Selling Agent or the Company of fees, expenses, or
disbursements incurred by the Indemnified Party shall be repaid by
the Indemnified Party, as applicable, in the event of any
proceeding in which a final judgment (after all appeals or the
expiration of time to appeal) is entered in a court of competent
jurisdiction against the Indemnified Party based solely upon their
respective gross negligence or intentional misconduct in the
performance of their respective duties hereunder, and provided further, that the Selling Agent
or the Company, as applicable, shall not be required to make
reimbursement or payment for any settlement effected without the
other party’s prior written consent (which consent shall not
be unreasonably withheld or delayed).
If for
any reason the foregoing indemnification is unavailable or is
insufficient to hold any of the Indemnified Party’s harmless,
the Selling Agent or Company, as the case may be, agrees to
contribute the amount paid or payable by any Selling Agent or the
Company, as the case may be, in such proportion as to reflect not
only the relative benefits received by the Company, on the one
hand, and the applicable Selling Agent, on the other hand, but also
the relative fault of the Company and any of the Selling Agent as
well as any relevant equitable considerations. In no event shall
any Selling Agent contribute in excess of the fees actually
received by it pursuant to the terms of this
Agreement.
For
purposes of this Agreement, each officer, director, shareholder,
and employee or affiliate of any Selling Agent or the Company and
each person, if any, who controls a Selling Agent or the Company
(or any affiliate) within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, shall have the
same rights as a Selling Agent or the Company with respect to
matters of indemnification by the Selling Agent or Company, as the
case may be, hereunder
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