CHROMADEX CORPORATION Common Stock (par value $0.001 per share) At Market Issuance Sales Agreement
Exhibit
1.2
EXECUTION COPY
CHROMADEX CORPORATION
Common
Stock
(par
value $0.001 per share)
At
Market Issuance Sales Agreement
June
12, 2020
X.
Xxxxx FBR, Inc.
000
Xxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
ChromaDex
Corporation, a Delaware corporation (the “Company”), confirms its
agreement (this “Agreement”) with X. Xxxxx
FBR, Inc. (“BRFBR”) and Xxxxxxx Xxxxx
& Associates, Inc. (“XXX”, xxxx xx XXXXX xxx
XXX an “Agent”, collectively, the
“Agents”) as
follows:
1. Issuance and Sale of Shares.
The Company agrees that, from time to time during
the
term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through or to the Agents,
as sales agent and/or principal, shares (the “Placement
Shares”), of the Company’s common
stock, par value $0.001 per share (the “Common Stock”);
provided however, that in
no event shall the Company issue or sell through the Agents such
number of Placement Shares that (a) exceeds the number of shares or
dollar amount of Common Stock registered on the effective
Registration Statement (as defined below) pursuant to which the
offering is being made or (b) exceeds the number of shares or
dollar amount registered on the Prospectus Supplement (as defined
below) (the lesser of (a) and (b) the “Maximum Amount”). The
Company agrees that whenever it determines to sell Placement Shares
directly to the Agents as principal it will expressly authorize the
Agents to purchase Placement Shares for its own account as
principal in accordance with Section 3(i) hereof.
Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitations set forth
in this Section 1
on the number or dollar amount of Placement Shares issued and sold
under this Agreement shall be the sole responsibility of the
Company and that the Agents shall have no obligation in connection
with such compliance. The issuance and sale of Placement Shares
through or to the Agents will be effected pursuant to the
Registration Statement (as defined below), although nothing in this
Agreement shall be construed as requiring the Company to use the
Registration Statement to issue any Placement Shares.
The
Company shall file, in accordance with the provisions of the
Securities Act of 1933, as amended and the rules and regulations
thereunder (the “Securities Act”), with
the Securities and Exchange Commission (the “Commission”), a
registration statement on Form S-3, including a base prospectus
relating to the offer and sale of some or all of the Placement
Shares, and which incorporates by reference documents that the
Company has filed or will file in accordance with the provisions of
the Securities Exchange Act of 1934, as amended and the rules and
regulations thereunder (the “Exchange Act”). The
Company has prepared a prospectus included as part of such
registration statement specifically relating to the Placement
Shares (the “ATM
Prospectus”), and will, if necessary, prepare a
prospectus supplement to the base prospectus included as part of
such registration statement specifically relating to the Placement
Shares (a “Prospectus Supplement”).
The Company will furnish to the Agents, for use by the Agents,
copies of the base prospectus and ATM Prospectus included as part
of such registration statement, as supplemented by any Prospectus
Supplement, relating to the offer and sale of the Placement Shares.
Except where the context otherwise requires, such registration
statement, and any post-effective amendment thereto, including all
documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus
(as defined below) subsequently filed with the Commission pursuant
to Rule 424(b) under the Securities Act or deemed to be a part of
such registration statement pursuant to Rule 430B of the
Securities Act, or any subsequent registration statement on Form
S-3 filed pursuant to Rule 415(a)(6) under the Securities Act by
the Company to cover any Placement Shares, is herein called the
“Registration
Statement.” The base prospectus and ATM Prospectus
relating to the offer and sale of the Placement Shares, including
all documents incorporated or deemed incorporated therein by
reference to the extent such information has not been superseded or
modified in accordance with Rule 412 under the Securities Act (as
qualified by Rule 430B(g) of the Securities Act), included in the
Registration Statement, as it may be supplemented by the Prospectus
Supplement, in the form in which such base prospectus, ATM
Prospectus and/or Prospectus Supplement have most recently been
filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act, together with any then issued Issuer Free
Writing Prospectus(es) (as defined below) is herein called the
“Prospectus.” Any
reference herein to the Registration Statement, the Prospectus or
any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated or deemed to be incorporated by
reference therein, and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration Statement
or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein (the
“Incorporated
Documents”).
For
purposes of this Agreement, all references to the Registration
Statement, the Prospectus or to any amendment or supplement thereto
shall be deemed to include the most recent copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system, or if applicable, the Interactive Data Electronic
Application system when used by the Commission (collectively,
“XXXXX”).
2. Placements. Each time that the
Company wishes to issue and sell Placement Shares through the
Agents acting as sales agent or directly to the Agents acting as
principal hereunder (each, a “Placement”), it will
notify an Agent (the “Designated Agent”) by
electronic mail (or other method mutually agreed to in writing by
the parties) of the number of Placement Shares, the time period
during which sales are requested to be made, whether the Designated
Agent may purchase shares for its own account as principal, any
limitation on the number of Placement Shares that may be sold in
any one day and any minimum price below which sales may not be made
(a “Placement
Notice”), the form of which is attached hereto as
Schedule 1. The
Placement Notice shall originate from any of the individuals from
the Company set forth on Schedule 3 (with a copy to each
of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the
Designated Agent set forth on Schedule 3, as such
Schedule 3 may be
amended from time to time. The Placement Notice shall be effective
immediately upon receipt by the Designated Agent unless and until
(i) the Designated Agent declines in writing, by any means provided
for under Section
14, to accept the terms contained therein for any reason, in
its sole discretion, (ii) the entire
amount of the Placement Shares thereunder has been sold, (iii) the
Company amends, supersedes, suspends or terminates the Placement
Notice, which suspension and termination rights may be exercised by
the Company in its sole discretion, or (iv) this Agreement has been
terminated under the provisions of Section 13. The amount of any
discount, commission or other compensation to be paid by the
Company to the Designated Agent in connection with the sale of the
Placement Shares shall be calculated in accordance with the terms
set forth in Schedule
2. It is expressly acknowledged and agreed that neither the
Company nor the Designated Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares
unless and until the Company delivers a Placement Notice to the
Designated Agent and the Designated Agent does not decline such
Placement Notice pursuant to the terms set forth above, and then
only upon the terms specified therein and herein. In the event of a
conflict between the terms of Sections 2 or 3 of this Agreement and the
terms of a Placement Notice, the terms of the Placement Notice will
control.
3. Sale of Placement Shares by the
Agents.
(i) Subject to the
terms and conditions of this Agreement, for the period specified in
a Placement Notice, the Designated Agent will use its commercially
reasonable efforts consistent with its normal trading and sales
practices and applicable state and federal laws, rules and
regulations and the rules of the Nasdaq Capital Market (the
“Exchange”), to sell the
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Designated
Agent will provide written confirmation to the Company no later
than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement
Shares hereunder setting forth the number of Placement Shares sold
on such day, the compensation payable by the Company to the
Designated Agent pursuant to Section 2 with respect to such
sales, and the Net Proceeds (as defined below) payable to the
Company, with an itemization of the deductions made by the
Designated Agent (as set forth in Section 5(b)) from the gross
proceeds that it receives from such sales. Subject to the terms of
a Placement Notice, the Designated Agent may sell Placement Shares
by any method permitted by law deemed to be an “at the market
offering” as defined in Rule 415(a)(4) of the Securities Act.
“Trading
Day” means any day on which shares of Common Stock are
purchased and sold on the Exchange.
(ii) During
the term of this Agreement, neither Agent nor any of their
affiliates or subsidiaries shall, for its own account, engage in
(i) any short sale of any security of the Company, (ii) any sale of
any security of the Company that the Agents do not own or any sale
which is consummated by the delivery of a security of the Company
borrowed by, or for the account of, the Agents, or (iii) any market
making, bidding, purchasing, stabilization or other trading
activity with regard to the Common Stock, or attempting to induce
another person to do any of the foregoing, if such activity would
be prohibited under applicable law. Neither Agent nor any of their
affiliates or subsidiaries shall engage in any proprietary trading
or trading for the Agent’s (or its affiliates’ or
subsidiaries’) own account. Notwithstanding the foregoing,
these restrictions shall not apply to bona fide transactions
executed by the Agents in the furtherance of the distribution
contemplated hereunder or on behalf and at the direction of any
third party customer account.
4. Suspension of Sales. The
Company or the Designated Agent may, upon notice to the other party
in writing (including by email correspondence to each of the
individuals of the other party set forth on Schedule 3, if receipt of such
correspondence is actually acknowledged by any of the individuals
to whom the notice is sent, other than via auto-reply) or by
telephone (confirmed immediately by verifiable facsimile
transmission or email correspondence to each of the individuals of
the other party set forth on Schedule 3), suspend any sale
of Placement Shares (a “Suspension”);
provided, however, that
such suspension shall not affect or impair any party’s
obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. While a Suspension is in
effect, any obligation under Sections 7(l), 7(m), and 7(n) with respect to the
delivery of certificates, opinions, or comfort letters to the
Agents, shall be waived. Each of the parties agrees that no such
notice under this Section
4 shall be effective against any other party unless it is
made to one of the individuals named on Schedule 3 hereto, as such
Schedule may be amended from time to time.
5. Sale and Delivery to the Designated
Agent; Settlement.
a. Sale of Placement Shares. On
the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, upon the
Designated Agent’s acceptance of the terms of a Placement
Notice, and unless the sale of the Placement Shares described
therein has been declined, suspended, or otherwise terminated in
accordance with the terms of this Agreement, the Designated Agent,
for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading
and sales practices and applicable state and federal laws, rules
and regulations and the rules of the Exchange to sell such
Placement Shares up to the amount specified in, and otherwise in
accordance with the terms of, such Placement Notice. The Company
acknowledges and agrees that (i) there can be no assurance that the
Designated Agent will be successful in selling Placement Shares,
(ii) the Designated Agent will incur no liability or obligation to
the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by the
Designated Agent to use its commercially reasonable efforts
consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the
rules of the Exchange to sell such Placement Shares as required
under this Agreement and (iii) the Designated Agent shall be under
no obligation to purchase Placement Shares on a principal basis
pursuant to this Agreement, except as otherwise agreed by the
Designated Agent and the Company.
b. Settlement of Placement Shares.
Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the
second (2nd) Trading Day (or
such earlier day as is industry practice for regular-way trading)
following the date on which such sales are made (each, a
“Settlement
Date”). The Designated Agent shall notify the Company
in writing of each sale of Placement Shares no later than opening
day following the Trading Day that the Designated Agent sold
Placement Shares. The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be
equal to the aggregate sales price received by the Designated
Agent, after deduction for (i) the Designated Agent’s
commission, discount or other compensation for such sales payable
by the Company pursuant to Section 2 hereof, and (ii) any
transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales.
c. Delivery of Placement Shares.
On or before each Settlement Date, the Company will, or will cause
its transfer agent to, electronically transfer the Placement Shares
being sold by crediting the Designated Agent’s or its
designee’s account (provided the Designated Agent shall have
given the Company written notice of such designee and such
designee’s account information at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto
which in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement
Date, the Designated Agent will deliver the related Net Proceeds in
same day funds to an account designated by the Company on, or prior
to, the Settlement Date. The Company agrees that if the Company, or
its transfer agent (if applicable), defaults in its obligation to
deliver Placement Shares on a Settlement Date through no fault of
the Designated Agent, then in addition to and in no way limiting
the rights and obligations set forth in Section 11(a) hereto, it will
(i) hold the Designated Agent harmless against any loss, claim,
damage, or reasonable, documented expense (including reasonable and
documented legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company or its transfer
agent (if applicable) and (ii) pay to the Designated Agent
(without duplication) any commission, discount, or other
compensation to which it would otherwise have been entitled absent
such default.
d. Limitations on Offering Size.
Under no circumstances shall the Company cause or request the offer
or sale of any Placement Shares if, after giving effect to the sale
of such Placement Shares, the aggregate number or dollar amount of
Placement Shares sold pursuant to this Agreement would exceed the
lesser of (A) together with all sales of Placement Shares under
this Agreement, the Maximum Amount, (B) the amount available for
offer and sale under the currently effective Registration Statement
and (C) the amount authorized from time to time to be issued and
sold under this Agreement by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized
executive committee, and notified to the Designated Agent in
writing. Under no circumstances shall the Company cause or request
the offer or sale of any Placement Shares pursuant to this
Agreement at a price lower than the minimum price authorized from
time to time by the Company’s board of directors, a duly
authorized committee thereof or a duly authorized executive
committee, and notified to the Designated Agent in
writing.
6. Representations and Warranties of the
Company. Except as disclosed in the Registration Statement
or Prospectus (including the Incorporated Documents), the Company
represents and warrants to, and agrees with the Agents that as of
the date of this Agreement and as of each Applicable Time (as
defined below), unless such representation, warranty or agreement
specifies a different date or time:
a. Registration Statement and
Prospectus. Assuming no act or omission on the part of the
Agents that would make this statement untrue, the transactions
contemplated by this Agreement meet the requirements for and comply
with the conditions for the use of Form S-3 under the
Securities Act. The Registration Statement has been filed with the
Commission and will be effective under the Securities Act at each
Applicable Time. The Prospectus will name the Agents as the agents
in the section entitled “Plan of Distribution.” The
Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration
Statement, or threatening or instituting proceedings for that
purpose. The Registration Statement and the offer and sale of
Placement Shares as contemplated hereby meet the requirements of
Rule 415 under the Securities Act and comply in all material
respects with said Rule. Any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been so described or filed, as
applicable. Copies of the Registration Statement, the Prospectus,
and any such amendments or supplements and all documents
incorporated by reference therein that were filed with the
Commission on or prior to the date of this Agreement have been
delivered, or are available through XXXXX, to the Agents and its
counsel. The Company has not distributed and, prior to the later to
occur of each Settlement Date and completion of the distribution of
the Placement Shares, will not distribute any offering material in
connection with the offering or sale of the Placement Shares other
than the Registration Statement and the Prospectus and any Issuer
Free Writing Prospectus to which the Agents have consented, which
consent will not be unreasonably withheld or delayed, or that is
required by applicable law or the listing maintenance requirements
of the Exchange. The Common Stock is currently quoted on the
Exchange under the trading symbol “CDXC.” The Company
has not, in the 12 months preceding the date hereof, received
notice from the Exchange to the effect that the Company is not in
compliance with the listing or maintenance requirements of the
Exchange. To the Company’s knowledge, it is in compliance
with all such listing and maintenance requirements.
b. No Misstatement or Omission. At
each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects
with the requirements of the Securities Act. The Registration
Statement, when it becomes effective, will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendment and
supplement thereto, on the date thereof and at each Applicable Time
(defined below), did not or will not include an untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading. The documents incorporated by
reference in the Prospectus or any Prospectus Supplement did not,
and any further documents filed and incorporated by reference
therein will not, when filed with the Commission, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated in such document or necessary to make the
statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply
to, and the Company neither makes nor shall make any representation
or warranty in respect of, statements in, or omissions from, any
such document made in reliance upon, and in conformity with,
information furnished to the Company by the Agents specifically for
use in the preparation thereof.
c. Conformity with Securities Act and
Exchange Act. The Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or any amendment or supplement
thereto, and the Incorporated Documents, when such documents were
or are filed with the Commission under the Securities Act or the
Exchange Act or became or become effective under the Securities
Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the
Exchange Act, as applicable.
d. Financial Information. The
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related notes and schedules, present
fairly, in all material respects, the consolidated financial
position of the Company and the Subsidiaries (as defined below) as
of the dates indicated and the consolidated results of operations,
cash flows and changes in stockholders’ equity of the Company
and the Subsidiaries for the periods specified (subject, in the
case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the
aggregate) and have been prepared in compliance with the published
requirements of the Securities Act and Exchange Act, as applicable,
and in conformity with generally accepted accounting principles in
the United States (“GAAP”) applied on a
consistent basis (except (i) for such adjustments to accounting
standards and practices as are noted therein and (ii) in the case
of unaudited interim financial statements, to the extent they may
exclude footnotes or may be condensed or summary statements) during
the periods involved; the other financial data with respect to the
Company and the Subsidiaries contained or incorporated by reference
in the Registration Statement and the Prospectus, are accurately
and fairly presented and prepared on a basis consistent with the
financial statements and books and records of the Company; there
are no financial statements (historical or pro forma) that are
required to be included or incorporated by reference in the
Registration Statement, or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off balance sheet obligations),
not described in the Registration Statement, and the Prospectus
which are required to be described in the Registration Statement or
Prospectus; and all disclosures contained or incorporated by
reference in the Registration Statement and the Prospectus, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
in all material respects with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Securities Act, to the extent
applicable.
e. Conformity with XXXXX Filing.
The Prospectus delivered to the Agents for use in connection with
the sale of the Placement Shares pursuant to this Agreement will be
identical to the versions of the Prospectus created to be
transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T.
f. Organization. The Company and
any subsidiary that is a significant subsidiary (as such term is
defined in Rule 1-02 of Regulation S-X promulgated by the
Commission) (each, a “Subsidiary,”
collectively, the “Subsidiaries”), are, and
will be, duly organized, validly existing in good standing under
the laws of their respective jurisdictions of incorporation or
organization. The Company and the Subsidiaries are duly licensed or
qualified as a foreign corporation for transaction of business and
in good standing under the laws of each other jurisdiction in which
their respective ownership or lease of property or the conduct of
their respective businesses requires such license or qualification,
and have all corporate power and authority necessary to own or hold
their respective properties and to conduct their respective
businesses as described in the Registration Statement and the
Prospectus, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or
in the aggregate, result in a material adverse effect on the
assets, business, operations, earnings, properties, financial
condition, prospects, stockholders’ equity or results of
operations of the Company and the Subsidiaries taken as a whole, or
prevent the consummation of the transactions contemplated hereby (a
“Material Adverse
Effect”).
g. Subsidiaries. The Company owns
directly or indirectly, all of the equity interests of the
Subsidiaries free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other restriction, and all
the equity interests of the Subsidiaries are validly issued and are
fully paid, nonassessable and free of preemptive and similar
rights. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the most recently ended fiscal year
and other than (i) those subsidiaries not required to be listed on
Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act
and (ii) those subsidiaries formed since the last day of the most
recently ended fiscal year.
h. No Violation or Default.
Neither the Company nor any Subsidiary is (i) in violation of
its charter or by-laws or similar organizational documents; (ii) in
default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other similar agreement or instrument to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary
is bound or to which any of the property or assets of the Company
or any Subsidiary is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority having
jurisdiction over the Company or such Subsidiary, as the case may
be, except, in the case of each of clauses (ii) and (iii) above,
for any such violation or default that would not, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect. To the Company’s knowledge, no other party
under any material contract or other agreement to which it or any
Subsidiary is a party is in default in any respect thereunder where
such default would result in a Material Adverse
Effect.
i. No Material Adverse Effect.
Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration
Statement and Prospectus, there has not been (i) any Material
Adverse Effect, or any development that would reasonably be
expected to have a Material Adverse Effect, (ii) any transaction
which is material to the Company and the Subsidiaries taken as a
whole, (iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or the Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any material change in the
capital stock (other than (A) the grant of additional options or
other securities exercisable for, or convertible into, Common Stock
under the Company’s existing stock option or incentive plans,
(B) changes in the number of shares of outstanding Common Stock of
the Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, or the vesting of
restricted stock units, (C) as a result of the issuance of
Placement Shares, (D) any repurchases of capital stock of the
Company, (E) as described in a proxy statement filed on Schedule
14A or a Registration Statement on Form S-4, or (F) otherwise
publicly announced) or outstanding long-term indebtedness of the
Company or the Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any Subsidiary, other than in each case above in the ordinary
course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document incorporated by
reference therein).
j. Capitalization. The issued and
outstanding shares of capital stock of the Company have been
validly issued, are fully paid and non-assessable and, other than
as disclosed in the Registration Statement or the Prospectus, are
not subject to any preemptive rights, rights of first refusal or
similar rights. The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus as of the dates referred to therein
(other than (i) the grant of additional options or other securities
exercisable for, or convertible into, Common Stock under the
Company’s existing stock option or incentive plans, (ii)
changes in the number of shares of outstanding Common Stock of the
Company due to the issuance of shares upon the exercise or
conversion of securities exercisable for, or convertible into,
Common Stock outstanding on the date hereof, or the vesting of
restricted stock units, (iii) as a result of the issuance of
Placement Shares, or (iv) any repurchases of capital stock of the
Company) and such authorized capital stock conforms to the
description thereof set forth in the Registration Statement and the
Prospectus. The description of the Common Stock in the Registration
Statement and the Prospectus is complete and accurate in all
material respects. Except as disclosed in or contemplated by the
Registration Statement or the Prospectus, as of the date referred
to therein, the Company did not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or exchangeable for, or
any contracts or commitments to issue or sell, any shares of
capital stock or other securities.
k. S-3 Eligibility. (i) At the
time of filing the Registration Statement and (ii) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of prospectus),
the Company met the then applicable requirements for use of Form
S-3 under the Securities Act, including compliance with General
Instruction I.B.1 of Form S-3, as applicable. The Company is not a
shell company (as defined in Rule 405 under the Securities Act) and
has not been a shell company for at least 12 calendar months
previously and if it has been a shell company at any time
previously, has filed current Form 10 information (as defined in
General Instruction I.B.6 of Form S-3) with the Commission at least
12 calendar months previously reflecting its status as an entity
that is not a shell company.
l. Authorization; Enforceability.
The Company has full corporate power and authority to enter into
this Agreement and perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except to the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification and contribution
provisions of Section
11 hereof may be limited by federal or state securities laws
and public policy considerations in respect thereof.
m. Authorization of Placement
Shares. The Placement Shares, when issued and delivered
pursuant to the terms approved by the board of directors of the
Company or a duly authorized committee thereof, or a duly
authorized executive committee, against payment of consideration
therefor as provided herein, will be duly and validly authorized
and issued and fully paid and nonassessable, free and clear of any
pledge, lien, encumbrance, security interest or other claim (other
than any pledge, lien, encumbrance, security interest or other
claim arising from an act or omission of the Agents or a
purchaser), including any statutory or contractual preemptive
rights, resale rights, rights of first refusal or other similar
rights, and will be registered pursuant to Section 12 of the
Exchange Act. The Placement Shares, when issued, will conform in
all material respects to the description thereof set forth in or
incorporated into the Prospectus.
n. No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or any
governmental or regulatory authority having jurisdiction over the
Company is required for the execution, delivery and performance by
the Company of this Agreement, and the issuance and sale by the
Company of the Placement Shares as contemplated hereby, except for
such consents, approvals, authorizations, orders and registrations
or qualifications (i) as may be required under applicable state
securities laws or by the by-laws and rules of the Financial
Industry Regulatory Authority (“FINRA”) or the Exchange,
including any notices that may be required by the Exchange, in
connection with the sale of the Placement Shares by the Agents,
(ii) as may be required under the Securities Act and (iii) as have
been previously obtained by the Company.
o. No Preferential Rights. (i) No
person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any shares of Common Stock or shares of any other
capital stock or other securities of the Company (other than upon
the exercise of options or warrants to purchase Common Stock, the
vesting of restricted stock units or upon the exercise or vesting
of options or other awards that may be granted from time to time
under the Company’s stock option plan), (ii) no Person has
any preemptive rights, rights of first refusal, or any other rights
(whether pursuant to a “poison pill” provision or
otherwise) to purchase any shares of Common Stock or shares of any
other capital stock or other securities of the Company from the
Company which have not been duly waived with respect to the
offering contemplated hereby, (iii) no Person has the right to act
as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Common Stock, and (iv) no
Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any Common Stock or
shares of any other capital stock or other securities of the
Company, or to include any such shares or other securities in the
Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Placement Shares as
contemplated thereby or otherwise, except in each case for such
rights as have been waived on or prior to the date
hereof.
p. Independent Registered Public
Accounting Firm. Xxxxxx LLP (the “Accountant”), whose
report on the consolidated financial statements of the Company is
filed with the Commission as part of the Company’s most
recent Annual Report on Form 10-K filed with the Commission and
incorporated into the Registration Statement, is and, during the
periods covered by its report, was an independent registered public
accounting firm within the meaning of the Securities Act and the
Public Company Accounting Oversight Board (United States). To the
Company’s knowledge, the Accountant is not in violation of
the auditor independence requirements of the Xxxxxxxx-Xxxxx Act of
2002 (the “Xxxxxxxx-Xxxxx Act”) with
respect to the Company.
q. Enforceability of Agreements.
All agreements between the Company and third parties that are
required under the Exchange Act or the Securities Act to be filed
as exhibits to the Company’s most recent Annual Report on
Form 10-K or the Registration Statement, other than such agreements
that have expired by their terms or whose termination is disclosed
in documents filed by the Company on XXXXX, are valid and binding
obligations of the Company and, to the Company’s knowledge,
enforceable in accordance with their respective terms, except to
the extent that (i) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general
equitable principles and (ii) the indemnification provisions of
certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof, and except
for any unenforceability that, individually or in the aggregate,
would not reasonably be expected to result in a Material Adverse
Effect.
r. No Litigation. There are no
legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any Subsidiary is a
party or to which any of the properties of the Company or any
Subsidiary is subject (i) other than proceedings accurately
described in all material respects in the Prospectus, proceedings
that, if determined adversely to the Company or any Subsidiary,
would not reasonably be expected to result in a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Prospectus or (ii) that are required to be described in the
Registration Statement or the Prospectus and are not so
described.
s. Licenses and Permits. The
Company and the Subsidiaries possess or have obtained, all
licenses, certificates, consents, orders, approvals, permits and
other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of
their respective businesses as currently conducted, as described in
the Registration Statement and the Prospectus (the
“Permits”), except where
the failure to possess, obtain or make the same would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any
Subsidiary has received written notice of any proceeding relating
to revocation or modification of any such Permit or has any reason
to believe that such Permit will not be renewed in the ordinary
course, except where the failure to obtain any such renewal would
not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
t. No Material Defaults. Neither
the Company nor any Subsidiary has defaulted on any installment on
indebtedness for borrowed money or on any rental on one or more
long-term leases, which defaults, individually or in the aggregate,
would reasonably be expected to result in a Material Adverse
Effect. The Company has not filed a report pursuant to Section
13(a) or 15(d) of the Exchange Act since the filing of its last
Annual Report on Form 10-K, indicating that it (i) has failed to
pay any dividend or sinking fund installment on preferred stock or
(ii) has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which
defaults, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect.
u. Certain Market Activities.
Neither the Company, nor any Subsidiary, nor, to the knowledge of
the Company, any of their respective directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or would cause or result in,
under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Placement Shares.
v. Broker/Dealer Relationships.
Neither the Company nor any Subsidiary or any related entities (i)
is required to register as a “broker” or
“dealer” in accordance with the provisions of the
Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a
member” or “associated person of a member”
(within the meaning set forth in the FINRA Manual).
w. Reserved
x. Taxes. The Company and the
Subsidiaries have filed all federal, state, local and foreign tax
returns which have been required to be filed and paid all taxes
shown thereon through the date hereof, to the extent that such
taxes have become due and are not being contested in good faith,
except where the failure to do so would not reasonably be expected
to result in a Material Adverse Effect. Except as otherwise
disclosed in or contemplated by the Registration Statement or the
Prospectus, no tax deficiency has been determined adversely to the
Company or any Subsidiary which has resulted in, or would
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. The Company has no knowledge of any
federal, state or other governmental tax deficiency, penalty or
assessment which has been or might be asserted or threatened
against it which would result in a Material Adverse
Effect.
y. Title to Real and Personal
Property. The Company and the Subsidiaries have good and
valid title to all items of real property and good and valid title
to all personal property described in the Registration Statement or
Prospectus as being owned by them that are material to the
businesses of the Company or such Subsidiary, in each case free and
clear of all liens, encumbrances and claims, except those that (i)
do not materially interfere with the use made and proposed to be
made of such property by the Company and the Subsidiaries or (ii)
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. Any real property described
in the Registration Statement or Prospectus as being leased by the
Company and the Subsidiaries is held by them under valid and
existing leases, except those that (A) do not materially interfere
with the use made or proposed to be made of such property by the
Company or the Subsidiaries or (B) would not, individually or in
the aggregate, reasonably be expected to result in a Material
Adverse Effect.
z. Intellectual Property. To the
Company’s knowledge, the Company and its Subsidiaries own or
possess adequate enforceable rights to use all patents, patent
applications, trademarks (both registered and unregistered), trade
names, trademark registrations, service marks, service xxxx
registrations, Internet domain name registrations, copyrights,
copyright registrations, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the
“Intellectual
Property”), necessary for the conduct of their
respective businesses as conducted as of the date hereof, except to
the extent that the failure to own or possess adequate rights to
use such Intellectual Property would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company and its Subsidiaries have not received any
written notice of any claim of infringement or conflict which
asserted Intellectual Property rights of others, which infringement
or conflict, if the subject of an unfavorable decision, would
result in a Material Adverse Effect. There are no pending, or to
the Company’s knowledge, threatened judicial proceedings or
interference proceedings challenging the Company’s or any its
Subsidiaries’ rights in or to or the validity of the scope of
any of the Company’s or its Subsidiaries’ patents,
patent applications or proprietary information. No other entity or
individual has any right or claim in any of the Company’s or
any of its Subsidiaries’ patents, patent applications or any
patent to be issued therefrom by virtue of any contract, license or
other agreement entered into between such entity or individual and
the Company or any Subsidiary or by any non-contractual obligation,
other than by written licenses granted by the Company or any
Subsidiary. The Company has not received any written notice of any
claim challenging the rights of the Company or its Subsidiaries in
or to any Intellectual Property owned, licensed or optioned by the
Company or any Subsidiary which claim, if the subject of an
unfavorable decision, would result in a Material Adverse
Effect.
aa. Compliance with Applicable
Laws. The Company has not been advised, and has no reason to
believe, that it is not, or that any of its Subsidiaries is not,
conducting its business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is
conducting business, except where failure to be so in compliance
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
bb. Environmental Laws. The Company
and the Subsidiaries (i) are in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses as described in the Registration Statement and the
Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except, in the case of any of clauses
(i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability
as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
cc. Disclosure Controls. The
Company maintains a system of internal accounting controls designed
to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
The Company is not aware of any material weaknesses in its internal
control over financial reporting (other than as set forth in the
Registration Statement or the Prospectus). Since the date of the
latest audited financial statements of the Company included in the
Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting (other
than as set forth in the Registration Statement or the Prospectus).
The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15 and 15d-15) that comply with
the applicable requirements of the Exchange Act. The
Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures as of
a date within 90 days prior to the filing date of the
Company’s Annual Report on Form 10-K for the fiscal year most
recently ended (such date, the “Evaluation Date”). The
Company presented in its Annual Report on Form 10-K for the
fiscal year most recently ended the conclusions of the certifying
officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the most recent
Evaluation Date.
dd. Xxxxxxxx-Xxxxx Act. There is
and has been no failure on the part of the Company or, to the
knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply in all material
respects with any applicable provisions of the Xxxxxxxx-Xxxxx Act
and the rules and regulations promulgated thereunder. Each of the
principal executive officer and the principal financial officer of
the Company (or each former principal executive officer of the
Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302
and 906 of the Xxxxxxxx-Xxxxx Act with respect to all reports,
schedules, forms, statements and other documents required to be
filed by it or furnished by it to the Commission during the past 12
months. For purposes of the preceding sentence, “principal
executive officer” and “principal financial
officer” shall have the meanings given to such terms in the
Exchange Act Rules 13a-15 and 15d-15.
ee. Finder’s Fees. Neither
the Company nor any Subsidiary has incurred any liability for any
finder’s fees, brokerage commissions or similar payments in
connection with the transactions herein contemplated, except as may
otherwise exist with respect to the Agents pursuant to this
Agreement.
ff. Labor Disputes. No labor
disturbance by or dispute with employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is
threatened which would reasonably be excepted to result in a
Material Adverse Effect.
gg. Investment Company Act. Neither
the Company nor any Subsidiary is or, after giving effect to the
offering and sale of the Placement Shares, will be required to
register as an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company
Act”).
hh. Operations. The operations of
the Company and the Subsidiaries are and have been conducted at all
times in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions to which the Company or the Subsidiaries are
subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency having jurisdiction over the
Company (collectively, the “Money Laundering Laws”),
except where the failure to be in such compliance would not,
reasonably be expected to result in a Material Adverse Effect; and
no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company,
threatened.
ii. Off-Balance Sheet Arrangements.
There are no transactions, arrangements and other relationships
between and/or among the Company, and/or, to the knowledge of the
Company, any of its affiliates and any unconsolidated entity,
including, but not limited to, any structured finance, special
purpose or limited purpose entity (each, an “Off-Balance Sheet
Transaction”) that would reasonably be expected to
affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those
Off-Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the
Registration Statement or the Prospectus which have not been
described as required.
jj. Underwriter Agreements. The
Company is not a party to any agreement with an agent or
underwriter for any other “at the market” or continuous
equity transaction.
kk. ERISA. To the knowledge of the
Company, (i) each material employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) that is
maintained, administered or contributed to by the Company or any of
its affiliates for employees or former employees of the Company and
the Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”); (ii) no
prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred which would result in a
material liability to the Company with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption; and (iii) for each such plan that is
subject to the funding rules of Section 412 of the Code or Section
302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such
plan (excluding for these purposes accrued but unpaid
contributions) equals or exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions, other than, in the case of (i), (ii) and (iii) above,
as would not reasonably be expected to result in a Material Adverse
Effect.
ll. Reserved
mm. Margin Rules. Neither the
issuance, sale and delivery of the Placement Shares nor the
application of the proceeds thereof by the Company as described in
the Registration Statement and the Prospectus will violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
nn. Insurance. The Company and the
Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company and the Subsidiaries
reasonably believe are adequate for the conduct of their
business.
oo. No Improper Practices. (i)
Neither the Company nor, to the Company’s knowledge, the
Subsidiaries, nor to the Company’s knowledge, any of their
respective executive officers has, in the past five years, made any
unlawful contributions to any candidate for any political office
(or failed fully to disclose any contribution in violation of law)
or made any contribution or other payment to any official of, or
candidate for, any federal, state, municipal, or foreign office or
other person charged with similar public or quasi-public duty in
violation of any law or of the character required to be disclosed
in the Prospectus; (ii) no relationship, direct or indirect, exists
between or among the Company or, to the Company’s knowledge,
the Subsidiaries or any affiliate of any of them, on the one hand,
and the directors, officers and stockholders of the Company or, to
the Company’s knowledge, the Subsidiaries, on the other hand,
that is required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not so described;
(iii) no relationship, direct or indirect, exists between or among
the Company or the Subsidiaries or any affiliate of them, on the
one hand, and the directors, officers, stockholders or directors of
the Company or, to the Company’s knowledge, the Subsidiaries,
on the other hand, that is required by the rules of FINRA to be
described in the Registration Statement and the Prospectus that is
not so described; (iv) there are no material outstanding loans or
advances or material guarantees of indebtedness by the Company or,
to the Company’s knowledge, the Subsidiaries to or for the
benefit of any of their respective officers or directors or any of
the members of the families of any of them; and (v) the Company has
not offered, or caused any placement agent to offer, Common Stock
to any person with the intent to influence unlawfully (A) a
customer or supplier of the Company or the Subsidiaries to alter
the customer’s or supplier’s level or type of business
with the Company or the Subsidiaries or (B) a trade journalist or
publication to write or publish favorable information about the
Company or the Subsidiaries or any of their respective products or
services, and, (vi) neither the Company nor the Subsidiaries nor,
to the Company’s knowledge, any employee or agent of the
Company or the Subsidiaries has made any payment of funds of the
Company or the Subsidiaries or received or retained any funds in
violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which
payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the
Prospectus.
pp. Status Under the Securities
Act. The Company was not and is not an ineligible issuer as
defined in Rule 405 under the Securities Act at the times specified
in Rules 164 and 433 under the Securities Act in connection
with the offering of the Placement Shares.
qq. No Misstatement or Omission in an
Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus, as of its issue date and as of each Applicable Time (as
defined in Section
25 below), did not, does not and will not, through the
completion of the Placement or Placements for which such Issuer
Free Writing Prospectus is issued, include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus,
including any incorporated document deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written
information furnished to the Company by the Agents specifically for
use therein.
rr. No Conflicts. Neither the
execution of this Agreement, nor the issuance, offering or sale of
the Placement Shares, nor the consummation of any of the
transactions contemplated herein, nor the compliance by the Company
with the terms and provisions hereof will conflict with, or will
result in a breach of, any of the terms and provisions of, or has
constituted or will constitute a default under, or has resulted in
or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except (i) such conflicts, breaches or
defaults as may have been waived and (ii) such conflicts, breaches
and defaults that would not reasonably be expected to result in a
Material Adverse Effect; nor will such action result (x) in any
violation of the provisions of the organizational or governing
documents of the Company, or (y) in any material violation of
the provisions of any statute or any order, rule or regulation
applicable to the Company or of any court or of any federal, state
or other regulatory authority or other government body having
jurisdiction over the Company, except where such violation would
not reasonably be expected to result in a Material Adverse
Effect.
ss. OFAC.
(i) Neither the Company
nor any Subsidiary (collectively, the “Entity”) nor, to the
Company’s knowledge, any director, officer, employee, agent,
affiliate or representative of the Entity, is a government,
individual, or entity (in this paragraph (ss), “Person”) that is, or is
owned or controlled by a Person that is:
(i) the subject of any
sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control
(“OFAC”), the United
Nations Security Council (“UNSC”), the European
Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”),
nor
(ii) located,
organized or resident in a country or territory that is the subject
of Sanctions.
(ii) The
Entity will not, directly or indirectly, knowingly use the proceeds
of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(i) to fund or
facilitate any activities or business of or with any Person or in
any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions; or
(ii) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or
otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the
Registration Statement and the Prospectus, for the past 5 years, it
has not knowingly engaged in and is not now knowingly engaged in
any dealing or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
tt. Stock Transfer Taxes. On each
Settlement Date, all material stock transfer or other taxes (other
than income taxes) which are required to be paid by the Company in
connection with the sale and transfer of the Placement Shares to be
sold hereunder will be, or will have been, fully paid or provided
for by the Company and all laws imposing such taxes will be or will
have been fully complied with by the Company in all material
respects.
uu. IT Systems. (i)(x) To the
knowledge of Company, there has been no security breach or other
compromise of any Company’s information technology and
computer systems, networks, hardware, software, data (including the
data of their respective customers, employees, suppliers, vendors
and any third party data maintained by or on behalf of them),
equipment or technology (collectively, “IT Systems and
Data”) and (y) the Company has not been notified of, and have
no knowledge of any event or condition that would reasonably be
expected to result in, any security breach or other compromise to
their IT Systems and Data; (ii) the Company is presently in
material compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Data and to the protection of such IT Systems and Data
from unauthorized use, access, misappropriation or modification,
except as would not, in the case of this clause (ii), individually
or in the aggregate, have a Material Adverse Effect; and (iii) the
Company has implemented backup and disaster recovery technology
consistent with industry standards and practices.
vv. FINRA Exemption. To enable the
Agents to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company
represents that (i) within sixty days of the filing of the
Prospectus, the Company had a nonaffiliate, public common equity
float of at least $150 million or a non-affiliate, public common
equity float of at least $100 million and annual trading volume of
at least three million shares and (ii) the Company has been subject
to the Exchange Act reporting requirements for a period of at least
36 months.
Any
certificate signed by an officer of the Company and delivered to
the Agents or to counsel for the Agents pursuant to or in
connection with this Agreement shall be deemed to be a
representation and warranty by the Company, as applicable, to the
Agents as to the matters set forth therein.
7. Covenants of the Company. The
Company covenants and agrees with the Agents that:
a. Registration Statement
Amendments. After the date of this Agreement and during any
period in which a prospectus relating to any Placement Shares is
required to be delivered by the Agents under the Securities Act
(including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act) (the
“Prospectus Delivery
Period”) (i) the Company will notify the Agents
promptly of the time when any subsequent amendment to the
Registration Statement, other than documents incorporated by
reference or amendments not related to any Placement, has been
filed with the Commission and/or has become effective or any
subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus related to the Placement or
for additional information related to the Placement, (ii) the
Company will prepare and file with the Commission, within a
reasonable period of time following the Agents’ reasonable
written request, any amendments or supplements to the Registration
Statement or Prospectus that, upon the advice of the
Company’s legal counsel, may be necessary or advisable in
connection with the distribution of the Placement Shares by the
Agents (provided, however,
that the failure of the Agents to make such request shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and provided,
further, that the only remedy the Agents shall have with respect to
the failure to make such filing shall be to cease making sales
under this Agreement until such amendment or supplement is filed);
(iii) the Company will not file any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement
Shares or a security convertible or exchangeable into the Placement
Shares (other than an Incorporated Document) unless a copy thereof
has been submitted to the Agents within a reasonable period of time
before the filing and the Agents have not reasonably objected
thereto (provided, however,
that (A) the failure of the Agents to make such objection shall not
relieve the Company of any obligation or liability hereunder, or
affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and (B) the
Company has no obligation to provide the Agents any advance copy of
such filing or to provide the Agents an opportunity to object to
such filing if the filing does not name the Agents or does not
relate to the transaction herein provided; and provided, further,
that the only remedy the Agents shall have with respect to the
failure by the Agents to provide such objection shall be to cease
making sales under this Agreement) and the Company will furnish to
the Agents at the time of filing thereof a copy of any document
that upon filing is deemed to be incorporated by reference into the
Registration Statement or Prospectus, except for those documents
available via XXXXX; and (iv) the Company will cause each amendment
or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the
Securities Act or, in the case of any document to be incorporated
therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed
(the determination to file or not file any amendment or supplement
with the Commission under this Section 7(a), based on the
Company’s reasonable opinion or reasonable objections, shall
be made exclusively by the Company).
b. Notice of Commission Stop
Orders. The Company will advise the Agents, promptly after
it receives notice or obtains knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the qualification
of the Placement Shares for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such
purpose; and it will use its commercially reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal
if such a stop order should be issued. The Company will advise the
Agents promptly after it receives any request by the Commission for
any amendments to the Registration Statement or any amendment or
supplements to the Prospectus or any Issuer Free Writing Prospectus
or for additional information related to the offering of the
Placement Shares or for additional information related to the
Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus.
c. Delivery of Prospectus; Subsequent
Changes. During the Prospectus Delivery Period, the Company
will use its commercially reasonable efforts to comply in all
material respects with all requirements imposed upon it by the
Securities Act, as from time to time in force, and to file on or
before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or
any other provision of or under the Exchange Act. If the Company
has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use its
commercially reasonable efforts to comply with the provisions of
and make all requisite filings with the Commission pursuant to said
Rule 430B and to notify the Agents promptly of all such filings if
not available on XXXXX. If during the Prospectus Delivery Period
any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then
existing, not misleading, or if during such Prospectus Delivery
Period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the
Company will promptly notify the Designated Agent to suspend the
offering of Placement Shares during such period and the Company
will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance; provided, however, that the Company may
delay the filing of any amendment or supplement, if in the judgment
of the Company, it is in the best interest of the
Company.
d. Listing of Placement Shares.
During the Prospectus Delivery Period, the Company will use its
commercially reasonable efforts to cause the Placement Shares to be
listed on the Exchange and to qualify the Placement Shares for sale
under the securities laws of such jurisdictions in the United
States as the Agents reasonably designate and to continue such
qualifications in effect so long as required for the distribution
of the Placement Shares; provided,
however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation or dealer
in securities, file a general consent to service of process, or
subject itself to taxation in any jurisdiction if it is not
otherwise so subject.
e. Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agents and its
counsel (at the reasonable expense of the Company) copies of the
Registration Statement, the Prospectus (including all documents
incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are
filed with the Commission during the Prospectus Delivery Period
(including all documents filed with the Commission during such
period that are deemed to be incorporated by reference therein), in
each case as soon as reasonably practicable and in such quantities
as the Agents may from time to time reasonably request and, at an
Agent’s request, will also furnish copies of the Prospectus
to each exchange or market on which sales of the Placement Shares
may be made; provided,
however, that the Company shall not be required to furnish
any document (other than the Prospectus) to the Agents to the
extent such document is available on XXXXX.
f. Earnings Statement. The Company
will make generally available to its security holders as soon as
practicable, but in any event not later than 15 months after the
end of the Company’s current fiscal quarter, an earnings
statement covering a 12-month period that satisfies the provisions
of Section 11(a) and Rule 158 of the Securities Act.
g. Use of Proceeds. The Company
will use the Net Proceeds as described in the Prospectus in the
section entitled “Use of Proceeds.”
h. Notice of Other Sales. Without
the prior written consent of the Agents, the Company will not,
directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Stock
(other than the Placement Shares offered pursuant to this
Agreement) or securities convertible into or exchangeable for
Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the date on which any
Placement Notice is delivered to the Agents hereunder and ending on
the third (3rd) Trading Day immediately following the final
Settlement Date with respect to Placement Shares sold pursuant to
such Placement Notice (or, if the Placement Notice has been
terminated or suspended prior to the sale of all Placement Shares
covered by a Placement Notice, the date of such suspension or
termination); and will not directly or indirectly in any other
“at the market” or continuous equity transaction offer
to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any
rights to purchase or acquire, Common Stock prior to the
termination of this Agreement; provided, however, that such
restrictions will not apply in connection with the Company’s
issuance or sale of (i) Common Stock, options to purchase Common
Stock or Common Stock issuable upon the exercise of options,
pursuant to any stock option, or benefits plan, stock ownership
plan or dividend reinvestment plan of the Company (but not Common
Stock subject to a waiver to exceed plan limits in its dividend
reinvestment plan) whether now in effect or hereafter implemented;
(ii) Common Stock issuable upon conversion of securities or the
exercise of warrants, options or other rights in effect or
outstanding, and disclosed in filings by the Company available on
XXXXX or otherwise in writing to the Agents, (iii) Common
Stock, or securities convertible into or exercisable for Common
Stock, offered and sold in a privately negotiated transaction to
vendors, customers, strategic partners or potential strategic
partners or other investors conducted in a manner so as not to be
integrated with the offering of Common Stock hereby and (iv) Common
Stock, or securities convertible into or exercisable for Common
Stock, in connection with any acquisition, strategic investment or
other similar transaction (including any joint venture, strategic
alliance or partnership). Notwithstanding the foregoing provisions,
nothing herein shall be construed to restrict the Company’s
ability, or require the consent of the Agents, to file a
registration statement under the Securities Act.
i. Change of Circumstances. The
Company will, at any time during the pendency of a Placement Notice
advise the Agents promptly after it shall have received notice or
obtained knowledge thereof, of any information or fact that would
alter or affect in any material respect any opinion, certificate,
letter or other document required to be provided to the Agents
pursuant to this Agreement.
j. Due Diligence Cooperation.
During the term of this Agreement, the Company will cooperate with
any reasonable due diligence review conducted by the Agents or its
representatives in connection with the transactions contemplated
hereby, including, without limitation, providing information and
making available documents and senior corporate officers, during
regular business hours and at the Company’s principal
offices, as the Agents may reasonably request.
k. Required Filings Relating to Placement
of Placement Shares. The Company agrees that on such dates
as the Securities Act shall require with respect to the Placement
Shares, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b) under the
Securities Act (each and every date a filing under Rule 424(b) is
made, a “Filing
Date”), which prospectus supplement will set forth,
within the relevant period, the amount of Placement Shares sold
through the Agents, the Net Proceeds to the Company and the
compensation payable by the Company to the Agents with respect to
such Placement Shares, and (ii) deliver such number of copies of
each such prospectus supplement to each exchange or market on which
such sales were effected as may be required by the rules or
regulations of such exchange or market.
l. Representation Dates;
Certificate. Each time during the term of this Agreement
that the Company:
(i) amends or
supplements (other than a prospectus supplement relating solely to
an offering of securities other than the Placement Shares) the
Registration Statement or the Prospectus relating to the Placement
Shares by means of a post-effective amendment, sticker, or
supplement but not by means of incorporation of documents by
reference into the Registration Statement or the Prospectus
relating to the Placement Shares;
(ii) files
an annual report on Form 10-K under the Exchange Act (including any
Form 10-K/A containing amended audited financial information or a
material amendment to the previously filed Form 10-K);
(iii) files
its quarterly reports on Form 10-Q under the Exchange Act;
or
(iv) files
a current report on Form 8-K containing amended financial
information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure
pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with
Statement of Financial Accounting Standards No. 144) under the
Exchange Act;
(Each
date of filing of one or more of the documents referred to in
clauses (i) through (iv) shall be a “Representation
Date.”)
the
Company shall furnish the Agents (but in the case of clause (iv)
above only if the Agents reasonably determines that the information
contained in such Form 8-K is material) with a certificate, in the
form attached hereto as Exhibit 7(1). The requirement
to provide a certificate under this Section 7(1) shall be waived
for any Representation Date occurring at a time at which no
Placement Notice is pending, which waiver shall continue until the
earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be
considered a Representation Date) and the next occurring
Representation Date on which the Company files its annual report on
Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of
the first Placement Notice hereunder and (ii) if the Company
subsequently decides to sell Placement Shares following a
Representation Date when the Company relied on such waiver and did
not provide the Agents with a certificate under this Section 7(1), then before the
Agents sells any Placement Shares, the Company shall provide the
Agents with a certificate, in the form attached hereto as
Exhibit 7(1), dated
the date of the Placement Notice.
m. Legal Opinion. On or prior to
the date of the first Placement Notice given hereunder the Company
shall cause to be furnished to the Agents a written opinion and a
negative assurance letter of Xxxxxx LLP (“Company Counsel”), or
other counsel reasonably satisfactory to the Agents, each in form
and substance reasonably satisfactory to the Agents. Thereafter,
within five (5) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate
in the form attached hereto as Exhibit 7(l) for which no waiver is
applicable, the Company shall cause to be furnished to the Agents
a negative assurance letter of Company Counsel in form and
substance reasonably satisfactory to the Agents; provided that, in
lieu of such negative assurance for subsequent periodic filings
under the Exchange Act, counsel may furnish the Agents with a
letter (a “Reliance Letter”) to the
effect that the Agents may rely on the negative assurance letter
previously delivered under this Section 7(m) to the same extent as
if it were dated the date of such letter (except that statements in
such prior letter shall be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented as of the
date of the Reliance Letter).
n. Comfort Letter. On or prior to
the date of the first Placement Notice given hereunder and within
five (5) Trading Days after each subsequent Representation Date,
the Company shall cause its independent accountants to furnish the
Agents letters (the “Comfort Letters”), dated
the date the Comfort Letter is delivered, which shall meet the
requirements set forth in this Section 7(n). The Comfort
Letter from the Company’s independent registered public
accounting firm shall be in a form and substance reasonably
satisfactory to the Agents, (i) confirming that they are an
independent registered public accounting firm within the meaning of
the Securities Act and the Public Company Accounting Oversight
Board, (ii) stating, as of such date, the conclusions and findings
of such firm with respect to the financial information and other
matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public
offerings (the first such letter, the “Initial Comfort Letter”)
and (iii) updating the Initial Comfort Letter with any
information that would have been included in the Initial Comfort
Letter had it been given on such date and modified as necessary to
relate to the Registration Statement and the Prospectus, as amended
and supplemented to the date of such letter.
o. Market Activities. The Company
will not, directly or indirectly, (i) take any action designed to
cause or result in, or that constitutes or would reasonably be
expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of shares of Common Stock or (ii) sell, bid for, or purchase
shares of Common Stock in violation of Regulation M, or pay anyone
any compensation for soliciting purchases of the Placement Shares
other than the Agents.
p. Investment Company Act. The
Company will conduct its affairs in such a manner so as to
reasonably ensure that neither it nor the Subsidiaries will be or
become, at any time prior to the termination of this Agreement, an
“investment company,” as such term is defined in the
Investment Company Act.
q. No Offer to Sell. Other than an
Issuer Free Writing Prospectus approved in advance by the Company
and the Agents in its capacity as agents or principals hereunder
pursuant to Section
23, neither Agent nor the Company (including its agents and
representatives, other than the Agent in its capacity as sales
agent or principal) will make, use, prepare, authorize, approve or
refer to any written communication (as defined in Rule 405 under
the Securities Act), required to be filed with the Commission, that
constitutes an offer to sell or solicitation of an offer to buy
Placement Shares hereunder.
x. Xxxxxxxx-Xxxxx Act. The Company
will maintain and keep accurate books and records reflecting its
assets and maintain internal accounting controls in a manner
designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP and including those
policies and procedures that (i) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company, (ii)
provide reasonable assurance that transactions are recorded as
necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with GAAP, (iii)
that receipts and expenditures of the Company are being made only
in accordance with management’s and the Company’s
directors’ authorization, and (iv) provide reasonable
assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that
could have a material effect on its financial statements. The
Company will maintain disclosure controls and procedures that
comply in all material respects with the requirements of the
Exchange Act.
8. Representations and Covenants of the
Agents. Each Agent represents and warrants that it is duly
registered as a broker-dealer under FINRA, the Exchange Act and the
applicable statutes and regulations of each state in which the
Placement Shares will be offered and sold, except such states in
which such Agent is exempt from registration or such registration
is not otherwise required. Each Agent shall continue, for the term
of this Agreement, to be duly registered as a broker-dealer under
FINRA, the Exchange Act and the applicable statutes and regulations
of each state in which the Placement Shares will be offered and
sold, except such states in which it is exempt from registration or
such registration is not otherwise required, during the term of
this Agreement. Each Agent shall comply with all applicable law and
regulations in connection with the transactions contemplated by
this Agreement, including without limitation the issuance and sale
through the Designated Agent of the Placement Shares.
9. Payment of Expenses. The
Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation,
filing, including any fees required by the Commission, and printing
of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment and supplement
thereto and each Issuer Free Writing Prospectus, in such number as
the Agents shall deem reasonably necessary, (ii) the printing and
delivery to the Agents of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Placement Shares, (iii) the
preparation, issuance and delivery of the certificates, if any, for
the Placement Shares to the Agents, including any stock or other
transfer taxes and any capital duties, stamp duties or other duties
or taxes payable upon the sale, issuance or delivery of the
Placement Shares to the Agents, (iv) the fees and disbursements of
the counsel, accountants and other advisors to the Company, (v) the
reasonable and documented out-of-pocket fees and disbursements of
counsel to the Agents (x) not to exceed $50,000 in connection with
the filing of this Agreement and (y) not to exceed $7,500 per year
thereafter in connection with updates at the time of Representation
Dates; (vi) the fees and expenses of the transfer agent and
registrar for the Common Stock, (vii) the filing fees incident to
any review by FINRA of the terms of the sale of the Placement
Shares, and (viii) the fees and expenses incurred in connection
with the listing of the Placement Shares on the
Exchange.
10. Conditions to the Agents’
Obligations. The obligations of the Agents hereunder with
respect to a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the
Company herein (other than those representations and warranties
made as of a specified date or time), to the due performance in all
material respects by the Company of its obligations hereunder, to
the completion by the Agents of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing reasonable
satisfaction (or waiver by the Agents in their sole discretion) of
the following additional conditions:
a. Registration Statement
Effective. The Registration Statement shall have become
effective and shall be available for the sale of all Placement
Shares contemplated to be issued by any Placement
Notice.
b. No Material Notices. None of
the following events shall have occurred and be continuing: (i)
receipt by the Company of any request for additional information
from the Commission or any other federal or state governmental
authority during the period of effectiveness of the Registration
Statement, the response to which would require any post-effective
amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other
federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or
receipt by the Company of notification of the initiation of any
proceedings for that purpose; (iii) receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for
sale in any jurisdiction or receipt by the Company of notification
of the initiation of, or a threat to initiate, any proceeding for
such purpose; or (iv) the occurrence of any event that makes any
material statement made in the Registration Statement or the
Prospectus or any material Incorporated Document untrue in any
material respect or that requires the making of any changes in the
Registration Statement, the Prospectus or any material Incorporated
Document so that, in the case of the Registration Statement, it
will not contain any materially untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, that
in the case of the Prospectus or any material Incorporated
Document, it will not contain any materially untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
c. No Misstatement or Material
Omission. The Agents shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in
the Agent’s reasonable opinion, in consultation with outside
counsel, is material, or omits to state a fact that in the
Agent’s reasonable opinion is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
d. Material Changes. Except as
contemplated in the Registration Statement. Prospectus, or
disclosed in the Company’s reports filed with the Commission,
there shall not have been any Material Adverse Effect, or any
development that would reasonably be expected to result in a
Material Adverse Effect, or a downgrading in or withdrawal of the
rating assigned to any of the Company’s securities (other
than asset backed securities) by any “nationally recognized
statistical rating organization,” as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities
Act (a “Rating
Organization”), or a public announcement by any Rating
Organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by
a Rating Organization described above, in the reasonable judgment
of the Agents (without relieving the Company of any obligation or
liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the
Placement Shares on the terms and in the manner contemplated in the
Prospectus.
e. Company Counsel Legal Opinion.
The Agents shall have received the opinion and negative assurance
letter of Company Counsel required to be delivered pursuant to
Section 7(m)
on or before the date on which such delivery of such opinion and
negative assurance letter are required pursuant to Section 7(m).
f. Agents Counsel Legal Opinion.
Agents shall have received from Xxxxx Xxxxxx LLP, counsel for the
Agents, such opinion or opinions, on or before the date on which
the delivery of the Company Counsel legal opinion is required
pursuant to Section
7(m), with respect to such matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for enabling them to pass
upon such matters.
g. Comfort Letter. The Agents
shall have received the Comfort Letter required to be delivered
pursuant Section
7(n) on or before the date on which such delivery of such
letter is required pursuant to Section 7(n).
h. Representation Certificate. The
Agents shall have received the certificate required to be delivered
pursuant to Section
7(1) on or before the date on which delivery of such
certificate is required pursuant to Section 7(1).
i. Secretary’s Certificate.
On or prior to the first Representation Date, the Agents shall have
received a certificate, signed on behalf of the Company by its
corporate Secretary, in form and substance reasonably satisfactory
to the Agents and its counsel.
j. No Suspension. Trading in the
Common Stock shall not have been suspended on the Exchange and the
Common Stock shall not have been delisted from the
Exchange.
k. Other Materials. On each date
on which the Company is required to deliver a certificate pursuant
to Section 7(1),
the Company shall have furnished to the Agents such appropriate
further information, certificates and documents as the Agents may
reasonably request and which are usually and customarily furnished
by an issuer of securities in connection with a securities offering
of the type contemplated hereby. All such opinions, certificates,
letters and other documents will be in compliance with the
provisions hereof.
l. Securities Act Filings Made.
All filings with the Commission required by Rule 424 under the
Securities Act to have been filed prior to the issuance of any
Placement Notice hereunder shall have been made within the
applicable time period prescribed for such filing by Rule
424.
m. Approval for Listing. The
Placement Shares shall either have been approved for listing on the
Exchange, subject only to notice of issuance, or the Company shall
have filed an application for listing of the Placement Shares on
the Exchange at, or prior to, the issuance of any Placement
Notice.
n. No Termination Event. There
shall not have occurred any event that would permit the Agents to
terminate this Agreement pursuant to Section 13(a).
11. Indemnification and
Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold
harmless the Agents, their partners, members, directors, officers,
employees and agents and each person, if any, who controls the
Agents within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows:
(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any related Issuer
Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 11(d) below) any
such settlement is effected with the written consent of the
Company, which consent shall not unreasonably be delayed or
withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the
reasonable and documented out-of-pocket fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above,
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made solely in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement (or any
amendment thereto), or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification
by the Agents. Each Agent agrees to indemnify and hold
harmless the Company and its directors and officers, and each
person, if any, who (i) controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
or (ii) is controlled by or is under common control with the
Company against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 11(a), as incurred, but
only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement
(or any amendments thereto) or in any related Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information
relating to such Agent and furnished to the Company in writing by
such Agent expressly for use therein.
(c) Procedure.
Any party that proposes to assert the right to be indemnified under
this Section 11
will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 11, notify each such
indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission to so notify such
indemnifying party will not relieve the indemnifying party from (i)
any liability that it might have to any indemnified party otherwise
than under this Section
11 and (ii) any liability that it may have to any
indemnified party under the foregoing provisions of this
Section 11 unless,
and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying
party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for
the reasonable and documented costs of investigation subsequently
incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential
conflict of interest exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable and documented
out-of-pocket fees, disbursements and other charges of counsel will
be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable and documented
out-of-pocket fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any
one time for all such indemnified party or parties. All such
reasonable and documented out-of-pocket fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly
after the indemnifying party receives a written invoice relating to
fees, disbursements and other charges in reasonable detail. An
indemnifying party will not, in any event, be liable for any
settlement of any action or claim effected without its written
consent. No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated by this
Section 11 (whether
or not any indemnified party is a party thereto), unless such
settlement, compromise or consent (1) includes an unconditional
release of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (2) does
not include a statement as to or an admission of fault, culpability
or a failure to act by or on behalf of any indemnified
party.
(d) Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 11 is applicable in
accordance with its terms but for any reason is held to be
unavailable from the Company or an Agent, the Company and such
Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted, but after deducting any contribution received by the
Company from persons other than the Agents, such as persons who
control the Company within the meaning of the Securities Act or the
Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for
contribution) to which the Company and the Agents may be subject in
such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on
the other hand. The relative benefits received by the Company on
the one hand and the Agents on the other hand shall be deemed to be
in the same proportion as the total Net Proceeds from the sale of
the Placement Shares (net of commissions paid to the Agents but
before deducting expenses) received by the Company bear to the
total compensation received by the Agents (before deducting
expenses) from the sale of Placement Shares on behalf of the
Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company, on the one
hand, and the Agents, on the other hand, with respect to the
statements or omission that resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such
offering. Such relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Agents, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Agents agree that it
would not be just and equitable if contributions pursuant to this
Section 11(d) were
to be determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability,
expense, or damage, or action in respect thereof, referred to above
in this Section
11(d) shall be deemed to include, for the purpose of this
Section 11(d), any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action
or claim to the extent consistent with Section 11(c) hereof.
Notwithstanding the foregoing provisions of this Section 11(d), the Agents shall
not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 11(d), any person who
controls a party to this Agreement within the meaning of the
Securities Act or the Exchange Act, and any officers, directors,
partners, employees or agents of the Agents, will have the same
rights to contribution as that party, and each officer who signed
the Registration Statement and director of the Company will have
the same rights to contribution as the Company, subject in each
case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may
be made under this Section
11(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not
relieve that party or parties from whom contribution may be sought
from any other obligation it or they may have under this
Section 11(d)
except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the
party from whom contribution is sought. Except for a settlement
entered into pursuant to the last sentence of Section 11(c) hereof, no party
will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required
pursuant to Section
11(c) hereof.
12. Representations and Agreements to
Survive Delivery. The indemnity and contribution agreements
contained in Section 11 of this Agreement and all representations
and warranties of the Company herein, or of the Agents herein, or
in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by
or on behalf of the Agents, any controlling persons, or the Company
(or any of their respective officers, directors or controlling
persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this
Agreement.
13. Termination.
a. An Agent may
terminate this Agreement, by notice to the Company, as hereinafter
specified at any time (1) if there has been, since the time of
execution of this Agreement or since the date as of which
information is given in the Prospectus, any Material Adverse
Effect, or any development that would reasonably be expected to
result in a Material Adverse Effect that, in the sole judgment of
such Agent, is material and adverse and makes it impractical or
inadvisable to market the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (2) if there has occurred any
material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make it,
in the judgment of such Agent, impracticable or inadvisable to
market the Placement Shares or to enforce contracts for the sale of
the Placement Shares, (3) if trading in the Common Stock has been
suspended or limited by the Commission or the Exchange, or if
trading generally on the Exchange has been suspended or limited, or
minimum prices for trading have been fixed on the Exchange, (4) if
any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market shall have occurred and
be continuing, (5) if a major disruption of securities settlements
or clearance services in the United States shall have occurred and
be continuing, or (6) if a banking moratorium has been
declared by either U.S. Federal or New York authorities. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination. If such Agent elects to terminate
this Agreement as provided in this Section 13(a), the such Agent
shall provide the required notice as specified in Section 14
(Notices).
b. The Company shall
have the right, by giving five (5) days’ notice as
hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
c. Each Agent shall
have the right, by giving five (5) days’ notice as
hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such
termination shall be without liability of any party to any other
party except that the provisions of Section 9 (Payment of
Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
d. Unless earlier
terminated pursuant to this Section 13, this Agreement
shall automatically terminate upon the issuance and sale of all of
the Placement Shares through the Agents on the terms and subject to
the conditions set forth herein except that the provisions of
Section 9 (Payment
of Expenses), Section
11 (Indemnification and Contribution), Section 12 (Representations and
Agreements to Survive Delivery), Section 18 (Governing Law and
Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
e. This Agreement
shall remain in full force and effect unless terminated pursuant to
Sections 13(a),
(b), (c), or (d) above or otherwise by
mutual agreement of the parties; provided, however, that any such
termination by mutual agreement shall in all cases be deemed to
provide that Section
9 (Payment of Expenses), Section 11 (Indemnification and
Contribution), Section
12 (Representations and Agreements to Survive Delivery),
Section 18
(Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) shall remain in full force and effect. Upon
termination of this Agreement, the Company shall not have any
liability to an Agent for any discount, commission or other
compensation with respect to any Placement Shares not otherwise
sold by the Agent under this Agreement. To the extent this
Agreement is terminated by one Agent or by the Company with respect
to one Agent pursuant to Sections 13(a) (b) or (c) above, this Agreement shall
terminate only with respect to such Agent and shall remain in full
force and effect with respect to the Company and the other Agents,
unless and until terminated pursuant to Sections 13(a), (b), (c), or (d) above.
f. Any termination of
this Agreement shall be effective on the date specified in such
notice of termination; provided,
however, that such termination shall not be effective until
the close of business on the date of receipt of such notice by an
Agent or the Company, as the case may be. If such termination shall
occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the
provisions of this Agreement.
14. Notices. All notices or other
communications required or permitted to be given by any party to
any other party pursuant to the terms of this Agreement shall be in
writing, unless otherwise specified, and if sent to the Agents,
shall be delivered to:
X.
Xxxxx FBR, Inc.
000
Xxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:General
Counsel
Telephone: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxx.xxx
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Attention:Xxxxxx
Xxxxxx and Xxx Xxxxxxx
Telephone: (000)
000-0000
Email: xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx
and xxx.xxxxxxx@xxxxxxxxxxxx.xxx
with a
copy to:
Xxxxx
Xxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx X.
Xxxxxxx
Telephone:
(000)
000-0000
Email:
xxxxxxxxx@xxxxxxxxxxx.xxx
and if
to the Company, shall be delivered to:
ChromaDex
Corporation
00000
Xxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxx
Xxxxxxx, XX 00000
Attention: General
Counsel
Telephone:
000-000-0000
Email:
xxxxx@xxxxxxxxx.xxx
with a
copy to:
Xxxxxx
LLP
0000
Xxxxxxxx Xxxx
Xxx
Xxxxx, XX 00000
Attention: Xxx
Xxxx
Telephone:
000-000-0000
Email:
xxxxxx@xxxxxx.xxx
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally, by email, or
by verifiable facsimile transmission on or before 4:30 p.m., New
York City time, on a Business Day or, if such day is not a Business
Day, on the next succeeding Business Day, (ii) on the next Business
Day after timely delivery to a nationally-recognized overnight
courier and (iii) on the Business Day actually received if
deposited in the U.S. mail (certified or registered mail, return
receipt requested, postage prepaid). For purposes of this
Agreement, “Business
Day” shall mean any day on which the Exchange and
commercial banks in the City of New York are open for
business.
15. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and the Agents and their respective successors and the
affiliates, controlling persons, officers and directors referred to
in Section 11
hereof. References to any of the parties contained in this
Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
Neither the Company nor the Agents may assign its rights or
obligations under this Agreement without the prior written consent
of the other party.
16. Adjustments for Stock Splits.
The parties acknowledge and agree that all share-related numbers
contained in this Agreement shall be adjusted to take into account
any share consolidation, stock split, stock dividend, corporate
domestication or similar event effected with respect to the
Placement Shares.
17. Entire Agreement; Amendment;
Severability. This Agreement (including all schedules and
exhibits attached hereto and Placement Notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other
prior and contemporaneous agreements and undertakings, both written
and oral, among the parties hereto with regard to the subject
matter hereof. Neither this Agreement nor any term hereof may be
amended except pursuant to a written instrument executed by the
Company and the Agents. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable as written
by a court of competent jurisdiction, then such provision shall be
given full force and effect to the fullest possible extent that it
is valid, legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only
to the extent that giving effect to such provision and the
remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties as reflected in this
Agreement.
18. GOVERNING LAW AND TIME; WAIVER OF JURY
TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME. THE COMPANY AND THE AGENTS EACH HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
19. CONSENT TO JURISDICTION. EACH
PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND
HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO
PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR
NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY
WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY
LAW.
20. Use of Information. The Agents
may not use any information gained in connection with this
Agreement and the transactions contemplated by this Agreement,
including due diligence, to advise any party with respect to
transactions not expressly approved by the Company.
21. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by facsimile transmission or email
of a .pdf attachment.
22. Effect of Headings. The
section, Schedule and Exhibit headings herein are for convenience
only and shall not affect the construction hereof.
23. Permitted Free Writing
Prospectuses. The Company represents, warrants and agrees
that, unless it obtains the prior consent of the Agents (which
consent shall not be unreasonably withheld or delayed), and the
Agents represent, warrant and agree that, unless it obtains the
prior consent of the Company, in each case which shall not be
unreasonably withheld, delayed or conditioned, it has not made and
will not make any offer relating to the Placement Shares that would
constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as
defined in Rule 405 under the Securities Act, required to be filed
with the Commission. Any such free writing prospectus consented to
by the Agents or by the Company, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.”
The Company represents and warrants that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule
433 under the Securities Act, and has complied and will comply with
the requirements of Rule 433 under the Securities Act applicable to
any Permitted Free Writing Prospectus, including timely filing with
the Commission where required, legending and record keeping. For
the purposes of clarity, the parties hereto agree that all free
writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted
Free Writing Prospectuses.
24. Absence of Fiduciary
Relationship. The Company acknowledges and agrees
that:
a. Each Agent is
acting solely as agent and/or principal in connection with the
offering of the Placement Shares and in connection with each
transaction contemplated by this Agreement and the process leading
to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates,
stockholders (or other equity holders), creditors or employees or
any other party, on the one hand, and the Agent, on the other hand,
has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the
Agent has advised or is advising the Company on other matters, and
the Agent has no obligation to the Company with respect to the
transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;
b. it is capable of
evaluating and understanding, and understands and accepts, the
terms, risks and conditions of the transactions contemplated by
this Agreement;
c. the Agents have not
provided any legal, accounting, regulatory or tax advice with
respect to the transactions contemplated by this Agreement and it
has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate;
d. it is aware that
the Agents and their affiliates are engaged in a broad range of
transactions which may involve interests that differ from those of
the Company and the Agents have no obligation to disclose such
interests and transactions to the Company by virtue of any
fiduciary, advisory or agency relationship or otherwise;
and
e. it waives, to the
fullest extent permitted by law, any claims it may have against the
Agents for breach of fiduciary duty or alleged breach of fiduciary
duty in connection with the sale of Placement Shares under this
Agreement and agrees that the Agents shall not have any liability
(whether direct or indirect, in contract, tort or otherwise) to it
in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on its behalf or in right of it or
the Company, employees or creditors of Company, other than in
respect of the Agent’s obligations under this Agreement and
to keep information provided by the Company to the Agents and the
Agents’ counsel confidential to the extent not otherwise
publicly-available.
25. Definitions. As used in this
Agreement, the following terms have the respective meanings set
forth below:
“Applicable Time” means
(i) each Representation Date and (ii) the time of each sale of any
Placement Shares pursuant to this Agreement.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act,
relating to the Placement Shares that (1) is required to be filed
with the Commission by the Company, (2) is a “road
show” that is a “written communication” within
the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission, or (3) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Placement Shares or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g)
under the Securities Act.
“Rule
172,” “Rule 405,”
“Rule
415,” “Rule 424,”
“Rule
424(b),” “Rule 430B,” and
“Rule
433” refer to such rules under the Securities
Act.
All
references in this Agreement to financial statements and schedules
and other information that is “contained,”
“included” or “stated” in the Registration
Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information that is incorporated
by reference in the Registration Statement or the Prospectus, as
the case may be.
All
references in this Agreement to the Registration Statement, the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to XXXXX; all references in this Agreement to any Issuer
Free Writing Prospectus (other than any Issuer Free Writing
Prospectuses that, pursuant to Rule 433, are not required to be
filed with the Commission) shall be deemed to include the copy
thereof filed with the Commission pursuant to XXXXX; and all
references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements,
“wrappers” or similar materials prepared in connection
with any offering, sale or private placement of any Placement
Shares by the Agents outside of the United States.
[Remainder
of the page intentionally left blank]
If the
foregoing correctly sets forth the understanding between the
Company and the Agents, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the Agents.
Very
truly yours,
CHROMADEX
CORPORATION
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By:
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/s/
Xxxxxx Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Chief
Executive Officer
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ACCEPTED
as of the date first-above written:
X.
XXXXX FBR, INC.
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By:
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/s/
Xxxxxxx XxXxxxxx
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Name:
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Xxxxxxx
XxXxxxxx
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Title:
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Co-Head
of Investment Banking
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XXXXXXX
XXXXX & ASSOCIATES, INC.
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Managing
Director
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SCHEDULE 1
________________________
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FORM OF
PLACEMENT
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NOTICE
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________________________
From:
ChromaDex
Corporation
To:
[X. Xxxxx FBR,
Inc.] [Xxxxxxx Xxxxx & Associates, Inc.]
Attention: [●]
Subject: At Market
Issuance--Placement Notice
Ladies
and Gentlemen:
Pursuant to the
terms and subject to the conditions contained in the At Market
Issuance Sales Agreement between ChromaDex Corporation, a Delaware
corporation (the “Company”), X. Xxxxx FBR,
Inc. and Xxxxxxx Xxxxx & Associates, dated June 12, 2020, the
Company hereby requests that the [identify Designated Agent] sell up to
[____] of the Company’s Common Stock, par value $0.001 per
share [(collectively, the “Placement Shares”)], at a
minimum market price of $per share, during the time period
beginning [month, day, time] and ending [month, day, time]. [The
Company hereby authorizes the Designated Agent to purchase such
Placement Shares for its own account as principal.]
SCHEDULE 2
________________________
Compensation
________________________
The
Company shall pay to the Designated Agent in cash, upon each sale
of Placement Shares pursuant to this Agreement, an amount equal to
up to 3.0% of the gross proceeds from each sale of Placement
Shares.
