May 7, 2015 CONFIDENTIAL
EXHIBIT 10.25
May 7, 2015
CONFIDENTIAL
Xx. Xxxxxx Xxxxx
Chief Executive Officer
0000 Xxxxxxx Xxxxxx Xx., Xxxxx X000
Santa Rosa, California 95404
Re: PIPE Offering
Dear Hojabr:
The purpose of this engagement letter is to outline our agreement pursuant to which Xxxxxx Xxxxx Securities, Inc. (“Xxxxxx”) will act as the lead or managing placement agent on a best efforts, agency basis in connection with the proposed PIPE (Private Placement Into Public Equity) offering (the “Offering”) pursuant to Rule 506 of Regulation D primulgated under the Securities Act of 1933 (the “Securities Act”) and limited to “accredited investors” (as that term is defined under Rule 501 of Regulation D by Ruthigen, Inc. (collectively, with its subsidiaries and affiliates, the “Company”) of its equity or equity-linked securities. This engagement letter (this “Agreement”) sets forth certain conditions and assumptions upon which the Offering is premised. However, except as expressly provided herein, this engagement letter is not intended to be a binding legal document, as the agreement between the parties hereto on the matters relating to the Offering will be embodied in the Placement Agency Agreement (as defined below). The terms of the Offering and the Securities (as defined below) shall be mutually agreed upon by the Company and the investors and nothing herein implies that Xxxxxx would have the power or authority to bind the Company or an obligation for the Company to issue any Securities or complete the Offering. The Company expressly acknowledges and agrees that the execution of this Agreement does not constitute a commitment by Xxxxxx to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the success of Xxxxxx with respect to securing any other financing on behalf of the Company.
The terms of our agreement in principle are as follows:
1. Engagement. The Company hereby engages Xxxxxx, for the period beginning on the date hereof and ending five business days before the closing of the merger described in the Company’s S-4 Registration Statement filed with the Securities and Exchange Commission on April 15, 2015 (the “S-4”) (“Merger”), unless sooner terminated pursuant to the terms of this engagement letter (the “Engagement Period”), to act as the Company’s exclusive financial advisor, lead or managing placement agent and/or book runner and investment banker in connection with the proposed Offering or any other financing. During the Engagement Period or until the consummation of the Offering, and as long as Xxxxxx is proceeding in good faith with preparations for the Offering, the Company agrees not to solicit, negotiate with or enter into any agreement with any other source of financing (whether equity, debt or otherwise; whether private or public), any underwriter, potential underwriter, placement agent, financial advisor, investment banking firm or any other person or entity in connection with an offering of the Company’s debt or equity securities or any other financing by the Company.
0 Xxxxx Xxxxxxx Xxxxxxx • Suite 500 • Boca Raton, FL 33432 • Toll Free 866.928.0928 • Main 000.000.0000 • Fax 000.000.0000 • xxx.xxxxxxxxxxx.xxx Member FINRA/SIPC |
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9. Survival. Except as provided in Paragraphs 1, 9, 10, 11, 13, 14, 15, and 16 hereof (which Paragraphs are intended to be legally binding and enforceable on and against the Company and Xxxxxx), this engagement letter is not intended to be a binding legal document nor a legal commitment on the part of Xxxxxx to provide any financing to the Company, as the agreement between the parties hereto on these matters will be embodied in the Placement Agency Agreement. Until the Placement Agency Agreement has been finally negotiated and signed, the Company or Xxxxxx may at any time terminate their further participation in the proposed transactions contemplated hereby and the engagement by the Company of Xxxxxx, and the party so terminating will have no liability to the other on account of any matters provided for herein, except as provided for in this Agreement.
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11. No Other Agreements. The Company represents and warrants to Xxxxxx that the entry into this engagement letter or any other action of the Company in connection with the proposed Offering will not violate any agreement between the Company and any other broker-dealer, underwriter or financial advisor.
13. Information. During the Engagement Period or until the final Closing, the Company agrees to cooperate with Xxxxxx and to furnish, or cause to be furnished, to Xxxxxx, any and all information and data concerning the Company, and the Offering that Xxxxxx xxxxx appropriate (the “Information”). The Company will provide Xxxxxx reasonable access during normal business hours from and after the date of execution of this engagement letter until the date of the Closing to all of the Company’s assets, properties, books, contracts, commitments and records and to the Company’s officers, directors, employees, appraisers, independent accountants, legal counsel and other consultants and advisors. Except as contemplated by the terms hereof or as required by applicable law, Xxxxxx will keep strictly confidential all non-public Information concerning the Company provided to Xxxxxx. No obligation of confidentiality will apply to Information that: (a) is in the public domain as of the date hereof or hereafter enters the public domain without a breach by Xxxxxx, (b) was known or became known by Xxxxxx prior to the Company’s disclosure thereof to Xxxxxx as demonstrated by the existence of its written records, (c) becomes known to Xxxxxx from a source other than the Company, and other than by the breach of an obligation of confidentiality owed to the Company, (d) is disclosed by the Company to a third party without restrictions on its disclosure or (e) is independently developed by Xxxxxx.
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14. No Third Party Beneficiaries; No Fiduciary Obligations. This engagement letter 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: (i) Xxxxxx 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 engagement letter or the retention of Xxxxxx hereunder, all of which are hereby expressly waived; and (ii) Xxxxxx is a full service securities firm engaged in a wide range of businesses and from time to time, in the ordinary course of its business, Xxxxxx or its affiliates may hold long or short positions and trade or otherwise effect transactions for its own account or the account of its customers in debt or equity securities or loans of the companies which may be the subject of the transactions contemplated by this Agreement. During the course of Xxxxxx engagement with the Company, Xxxxxx may have in its possession material, non-public information regarding other companies that could potentially be relevant to the Company or the transactions contemplated herein but which cannot be shared due to an obligation of confidence to such other companies.
15. Indemnification, Advancement & Contribution.
(a) Indemnification. The Company agrees to indemnify and hold harmless Xxxxxx, its affiliates and each person controlling Xxxxxx (within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of Xxxxxx, its affiliates and each such controlling person (Xxxxxx, and each such entity or person hereafter is referred to as an “Indemnified Person”) from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of counsel for the Indemnified Persons) (collectively, the “Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising out of the Offering or based upon or arising out of alleged any untrue statement or alleged untrue statement of a material fact contained in (i) the Private Placement Memorandum, or any other offering documents (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application or other document or written communication (collectively called “application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Securities under the securities laws thereof or to file for an exemption from such requirement or filed with the Commission, any state securities commission or agency, any national securities exchange; or the omission or alleged omission therefrom of 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, unless such statement or omission was made in reliance upon, and in conformity with, information provided to the Company by Xxxxxx in writing specifically for use in the Private Placement Memorandum, or any other offering documents. The Company also agrees to advance and to reimburse each Indemnified Person for all Expenses as they are incurred in connection with such Indemnified Person’s enforcement of his or its rights under this Section 15.
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(d) Limitation. The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this engagement letter, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions, except to the extent that a court of competent jurisdiction has made a finding that Liabilities (and related Expenses) of the Company have resulted exclusively from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
16. Governing Law; Venue. This engagement letter will be deemed to have been made and delivered in the State of Florida and both the binding provisions of this Agreement and the transactions contemplated hereby and by the Underwriting Agreement will be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of Florida, without regard to the conflict of laws principles thereof. Each of Xxxxxx and the Company: (i) agrees that any legal suit, action or proceeding arising out of or relating to this engagement letter and/or the transactions contemplated hereby will be instituted exclusively in the courts located in the county of Palm Beach, Florida (ii) waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the courts located in the county of Palm Beach, Florida, in any such suit, action or proceeding. Each of Xxxxxx and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in such courts and agrees that service of process upon the Company mailed by certified mail to the Company’s address will be deemed in every respect effective service of process upon the Company, in any such suit, action or proceeding, and service of process upon Xxxxxx mailed by certified mail to Xxxxxx’x address will be deemed in every respect effective service process upon Xxxxxx, in any such suit, action or proceeding. Notwithstanding any provision of this engagement letter to the contrary, the Company agrees that neither Xxxxxx nor its affiliates, and the respective officers, directors, employees, agents and representatives of Xxxxxx, its affiliates and each other person, if any, controlling Xxxxxx or any of its affiliates, will have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the engagement and transaction described herein except for any such liability for losses, claims, damages or liabilities incurred by the Company that are finally judicially determined to have resulted from the bad faith or gross negligence of such individuals or entities. Xxxxxx will act under this engagement letter as an independent contractor with duties to the Company.
If you are in agreement with the foregoing, please sign and return to us one copy of this engagement letter together with a payment to Xxxxxx Xxxxx Securities, Inc. in the amount of the Advance. This engagement letter may be executed in counterparts (including facsimile or .pdf counterparts), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Very truly yours, | |
XXXXXX XXXXX SECURITIES, INC. |
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Name: | ||
Title: |
Accepted and agreed as of | |
the date first written above: | |
RUTHIGEN, Inc. |
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Name: | ||
Title: |
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