PLACEMENT AGENCY AGREEMENT
EXHIBIT
1.1
March 30,
2010
Xxxx
Capital Partners, LLC
00
Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Ladies
and Gentlemen:
CPI
Aerostructures, Inc., a New York corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell up to
500,000 shares of the Company’s common stock, par value $0.001 per share (the
“Shares”) to
various investors (the “Investors”) in a
transaction in which Xxxx Capital Partners, LLC (“Xxxx”) will act as
placement agent.
The
Company and Xxxx hereby confirm their agreement as follows:
1. Agreement to Act
as Placement
Agent. On the basis of
the representations, warranties and agreements of the Company herein contained,
and subject to all the terms and conditions of this Agreement, Xxxx shall serve
as the exclusive placement agent in connection with the issuance and sale by the
Company of the Shares from the Registration Statement (as defined in Section 2
below), with the terms of such offering (the “Offering”) to be
subject to market conditions and negotiations between the Company, Xxxx and the
Investors. Xxxx shall act on a best efforts basis and does not
guarantee that it will be able to sell the Shares in the prospective
Offering. As compensation for services rendered, on the Closing Date
(as defined below), the Company shall pay to Xxxx an aggregate amount equal to
7% of the of the aggregate public offering price of the Shares sold in the
Offering. The purchase price to the Investors for each Share is
US$7.80 (the “Offering
Price”).
2. Registration
Statement and Final Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-161978) under the Securities
Act of 1933 (the “Securities Act”) and
the rules and regulations (the “Rules and
Regulations”) of the Commission thereunder, and such amendments to such
registration statement (including post effective amendments) as may have been
required to the date of this Agreement. Such registration statement,
as amended (including any post effective amendments), has been declared
effective by the Commission. Such registration statement, as amended
(including post effective amendments thereto), the exhibits and any schedules
thereto and the documents and information otherwise deemed to be a part thereof
or included therein by the Securities Act or otherwise pursuant to the Rules and
Regulations, is herein called the “Registration
Statement.” If the Company has filed or files an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration
Statement”), then any reference herein to the term Registration Statement
shall include such Rule 462 Registration Statement. The Company will
file with the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement relating to the Shares to the form of prospectus included
in the Registration Statement. The prospectus in the form in which it
appears in the Registration Statement is hereinafter called the “Base Prospectus,” and
the final prospectus supplement as filed, along with the Base Prospectus, is
hereinafter called the “Final
Prospectus.”
For
purposes of this Agreement, all references to the Registration Statement, the
Rule 462 Registration Statement, the Base Prospectus, the Final Prospectus, or
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Interactive Data Electronic
Applications system. All references in this Agreement to amendments
or supplements to the Registration Statement, the Rule 462 Registration
Statement, the Base Prospectus, or the Final Prospectus shall be deemed to mean
and include the subsequent filing of any document under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), that
is deemed to be incorporated therein by reference therein or otherwise deemed by
the Rules and Regulations to be a part thereof.
3. Representations
and Warranties Regarding the Offering.
(a) The
Company represents and warrants to, and agrees with, Xxxx, as of the date hereof
and as of the Closing Date, except as otherwise indicated, as
follows:
(i) At
each time of effectiveness, at the date hereof and at the Closing Date, the
Registration Statement and any post-effective amendment thereto, complied or
will comply in all material respects with the requirements of the Securities Act
and the Rules and Regulations and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Time of Sale Disclosure Package (as defined below) as
of the date hereof and at the Closing Date, and the Final Prospectus, as amended
or supplemented, at the time of filing pursuant to Rule 424(b) under the
Securities Act and at the Closing Date, did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding
sentences shall not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto or the Final Prospectus in
reliance upon, and in conformity with, written information furnished to the
Company by Xxxx specifically for use in the preparation thereof. The
Registration Statement contains all exhibits and schedules required to be filed
by the Securities Act or the Rules and Regulations. No order
preventing or suspending the effectiveness or use of the Registration Statement
or the Final Prospectus is in effect and no proceedings for such purpose have
been instituted or are pending, or, to the Knowledge of the Company, are
contemplated or threatened by the Commission. The term “Knowledge” as
used in this Agreement shall mean actual knowledge of the Company’s officers
after due and reasonable inquiry.
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(ii) The
documents incorporated by reference in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus, when they became effective or
were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, were filed on a timely basis with the Commission and none of such
documents, when they were filed (or, if amendments to such documents were filed,
when such
amendments were filed), contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Any further documents so filed and incorporated by
reference in the Registration Statement, the Time of Sale Disclosure Package or
the Final Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act, and
will not contain 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 under which they were made, not misleading. As used in
this paragraph and elsewhere in this Agreement, “Time of Sale Disclosure
Package” means the Base Prospectus, the Final Prospectus most recently
filed with the Commission before the time of this Agreement, any subscription
agreement between the Company and the Investors, and any issuer free writing
prospectus as defined in Rule 433 of the Act (each, an “Issuer Free Writing
Prospectus”), if any, that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package. The Commission has
not issued any order preventing or suspending the use of the Base Prospectus,
and the Base Prospectus conforms in all material respects with the requirements
of the Securities Act and, as of its date, has not included and does not include
any untrue statement of a material fact and does not omit to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading. There is no material document
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required. All material agreements of the
Company and all agreements governing or evidencing any and all related party
transactions have been filed with the Commission in accordance with the Exchange
Act.
(iii) The
financial statements of the Company, together with the related notes, included
or incorporated by reference in the Registration Statement, the Time of Sale
Disclosure Package and the Final Prospectus comply in all material respects with
the requirements of the Securities Act and the Exchange Act and fairly present
the financial condition of the Company as of the dates indicated and the results
of operations and changes in cash flows for the periods therein specified in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. No other financial statements or schedules are required to
be included in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus. To the Company’s Knowledge, X.X. Xxxx LLP is
an independent public accounting firm with respect to the Company within the
meaning of the Securities Act and the Rules and Regulations.
(iv) The
Company had a reasonable basis for, and made in good faith, each
“forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the Final
Prospectus.
(v) All
statistical or market-related data included or incorporated by reference in the
Registration Statement, the Time of Sale Disclosure Package or the Final
Prospectus
are based on or derived from sources that the Company reasonably believes to be
reliable and accurate, and the Company has obtained the written consent to the
use of such data from such sources, to the extent required.
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(vi) There
is no action pending to delist the Common Shares from NYSE Amex (“AMEX”), nor has the
Company received any notification that AMEX is currently contemplating
terminating such listing. When issued, the Shares will be listed on
AMEX.
(vii) The
Shares have been or will be qualified for sale under the securities laws of such
United States jurisdictions as Xxxx and the Company shall determine, or are or
will be exempt from the qualification and broker-dealer requirements of such
jurisdictions.
(viii) The
Company has not taken, directly or indirectly, any action that is designed to or
that has constituted or that would reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(ix) The
Company is not an “ineligible issuer,”
as defined in Rule 405 of the Securities Act. Subject to Section 6(d)
below, the Company represents and warrants that it has not prepared or had
prepared on its behalf or used or referred to any Issuer Free Writing Prospectus
in connection with the Offering. Subject to Section 6(d) below, the
Company has not distributed and the Company will not distribute, prior to the
completion of the distribution of the Shares, any offering material in
connection with the Offering other than subscription agreements between the
Company and the Investors and the Base Prospectus, the Final Prospectus, the
Registration Statement, and copies of the documents, if any, incorporated by
reference therein.
(x) The
Company is not and, after giving effect to the offering and sale of the Shares,
will not be an “investment company,” as such term is defined in the Investment
Company Act of 1940, as amended.
(xi) The
Company was at the time of filing the Registration Statement and at the date
hereof remains eligible to use Form S-3 under the Securities Act for the primary
offering of the Shares contemplated by this Agreement. The issuance and
sale of the Shares pursuant to the Registration Statement as contemplated
by this Agreement complies with the requirements of Form S-3 and General
Instruction I.B.6 thereunder.
(b) Any
certificate signed by any officer of the Company and delivered to Xxxx or to
Xxxx’x counsel shall be deemed a representation and warranty by the Company to
Xxxx as to the matters covered thereby.
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4. Representations
and Warranties Regarding the Company.
(a) The
Company represents and warrants to and agrees with, Xxxx, except as set forth in
the Registration Statement, the Time of Sale Disclosure Package and the Final
Prospectus,
as follows:
(i) The
Company has been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. The Company has
the corporate power and authority to own its properties and conduct its business
as currently being carried on and as described in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, and is duly
qualified to do business as a foreign corporation in good standing in each
jurisdiction in which it owns or leases real property or in which the conduct of
its business makes such qualification necessary and in which the failure to so
qualify would have or is reasonably likely to result in a material adverse
effect upon the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Company or in its
ability to perform its obligations under this Agreement (“Material Adverse
Effect”).
(ii) The
Company has no subsidiaries and does not own any securities issued by any other
business organization or governmental authority. The Company does not
own or have any direct or indirect interest in or control over any corporation,
partnership, joint venture or entity of any kind.
(iii) The
Company has the power and authority to enter into this
Agreement. This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity.
(iv) The
execution, delivery and performance of this Agreement and the consummation of
the transactions herein contemplated will not (A) result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any law, rule or regulation to which the Company is subject, or by which any
property or asset of the Company is bound or affected, (B) conflict with, result
in any violation or breach of, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any right of termination, amendment, acceleration or cancellation (with or
without notice, lapse of time or both) of, any agreement, lease, credit
facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”) or
obligation or other understanding to which the Company is a party or by which
any property or asset of the Company is bound or affected, or (C) result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, the Company’s charter or bylaws.
(v) All
consents, approvals, orders, authorizations and filings required on the part of
the Company in connection with the execution, delivery or performance of this
Agreement have been obtained or made, other than such consents, approvals,
orders and authorizations the failure of which to make or obtain is not
reasonably likely to result in a Material Adverse Effect. There are
no holders of securities of the Company having preemptive rights to purchase
Common Stock or, except as disclosed in the Prospectus, registration
rights.
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(vi) All
of the issued and outstanding shares of capital stock of the Company are duly
authorized and validly issued, fully paid and nonassessable, and have been
issued in compliance with all applicable securities laws, and conform to the
description thereof in the Registration Statement, the Time of Sale Disclosure
Package and the Final Prospectus. Except for the issuances of options
or restricted stock in the ordinary course of business, since the respective
dates as of which information is provided in the Registration Statement, the
Time of Sale Disclosure Package or the Final Prospectus, the Company has not
entered into or granted any convertible or exchangeable securities, options,
warrants, agreements, contracts or other rights in existence to purchase or
acquire from the Company any shares of the capital stock of the
Company. The Shares, when issued, will be duly authorized and
validly issued, fully paid and nonassessable, issued in compliance with all
applicable securities laws, and free of preemptive, registration or similar
rights.
(vii) The
Company does not own, directly or indirectly, any capital stock or other
ownership interest in any partnership, corporation, business trust, limited
liability company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity.
(viii) The
Company has filed all foreign, federal, state and local returns (as hereinafter
defined) required to be filed with taxing authorities prior to the date hereof
or has duly obtained extensions of time for the filing thereof. The
Company has paid all taxes (as hereinafter defined) shown as due on such returns
that were filed and has paid all taxes imposed on or assessed against the
Company. The provisions for taxes payable, if any, shown on the
financial statements filed with or as part of the Registration Statement are
sufficient for all accrued and unpaid taxes, whether or not disputed, and for
all periods to and including the dates of such consolidated financial
statements. Except as disclosed in writing to Xxxx, (i) no issues
have been raised (and are currently pending) by any taxing authority in
connection with any of the returns or taxes asserted as due from the Company,
and (ii) no waivers of statutes of limitation with respect to the returns or
collection of taxes have been given by or requested from the
Company. The term “taxes” mean all
federal, state, local, foreign, and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees, assessments, or charges of any kind whatever, together with any
interest and any penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all
returns, declarations, reports, statements, and other documents required to be
filed in respect to taxes.
(ix) Since
December 31, 2009, (a) the Company has not incurred any material liabilities or
obligations, direct or contingent, required to be reflected on a balance sheet
in accordance with generally accepted accounting principles, or entered into any
material transactions other than in the ordinary course of business, (b) the
Company has not declared or paid any dividends or made any distribution of any
kind with
respect to its capital stock; (c) there has not been any change in the capital
stock of the Company (other than a change in the number of outstanding shares of
Common Stock due to the issuance of shares upon the exercise of outstanding
options or warrants or the issuance of restricted stock awards or restricted
stock units under the Company’s existing stock awards plan, or any new
grants thereof in the ordinary course of business), (d) there has not been any
material change in the Company’s long-term or short-term debt, and (e) there has
not been the occurrence of any Material Adverse Effect.
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(x) There
is not pending or, to the Knowledge of the Company, threatened, any action, suit
or proceeding to which the Company is a party or of which any property or assets
of the Company is the subject before or by any court or governmental agency,
authority or body, or any arbitrator or mediator, which is reasonably likely to
result in a Material Adverse Effect.
(xi) The
Company holds, and is in compliance with, all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and orders
(“Permits”) of
any governmental or self-regulatory agency, authority or body required for the
conduct of its business, and all such Permits are in full force and effect, in
each case except where the failure to hold, or comply with, any of them is not
reasonably likely to result in a Material Adverse Effect.
(xii) The
Company has good and marketable title to all property (whether real or personal)
described in the Registration Statement, the Time of Sale Disclosure Package and
the Final Prospectus as being owned by them that are material to the business of
the Company, in each case free and clear of all liens, claims, security
interests, other encumbrances or defects, except as described in the
Registration Statement, the Time of Sale Disclosure Package and the Prospectus
or those that are not reasonably likely to result in a Material Adverse
Effect. The property held under lease by the Company is held by them
under valid, subsisting and enforceable leases with only such exceptions with
respect to any particular lease as do not interfere in any material respect with
the conduct of the business of the Company.
(xiii) The
Company owns or possesses or has valid right to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses, inventions, trade secrets and
similar rights (“Intellectual
Property”) necessary for the conduct of the business of the Company as
currently carried on and as described in the Registration Statement, the Time of
Sale Disclosure Package and the Final Prospectus. To the Knowledge of
the Company, no action or use by the Company will involve or give rise to any
infringement of, or license or similar fees for, any Intellectual Property of
others, except where such action, use, license or fee is not reasonably likely
to result in a Material Adverse Effect. The Company has not received
any notice alleging any such infringement or fee.
(xiv) The
Company has complied with, is not in violation of, and has not received any
notice of violation relating to any law, rule or regulation relating to the
conduct of its business, or the ownership or operation of its property and
assets, including, without limitation, (A) the Currency and Foreign Transactions
Reporting Act of 1970,
as amended, or any money laundering laws, rules or regulations, (B) any laws,
rules or regulations related to health, safety or the environment, including
those relating to the regulation of hazardous substances, (C) the Xxxxxxxx-Xxxxx
Act and the rules and regulations of the Commission thereunder, (D) the Foreign
Corrupt Practices Act of 1977 and the rules and regulations thereunder, and (E)
the Employment Retirement Income Security Act of 1974 and the rules and
regulations thereunder, in each case except where the failure to be in
compliance is not reasonably likely to result in a Material Adverse
Effect.
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(xv) Neither
the Company nor, to the Knowledge of the Company, any director, officer,
employee, representative, agent or affiliate of the Company is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the Offering of the
Shares contemplated hereby, or lend, contribute or otherwise make available such
proceeds to any person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by
OFAC.
(xvi) The
Company carries, or is covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses in
similar industries.
(xvii) No
labor dispute with the employees of the Company exists or, to the Knowledge of
the Company, is imminent that is reasonably likely to result in a Material
Adverse Effect.
(xviii) To
the Knowledge of the Company, there are no facts which are reasonably likely to
cause (A) the withdrawal, or recall of any parts or products sold or intended to
be sold by the Company, or (B) a suspension or revocation of any license,
certificate, approval, clearance, authorization, permit, supplement, or
amendment required by any applicable laws to conduct the business of the
Company. The Company and its subsidiaries have not received notice
(whether complete or pending) of any proceeding seeking recall, suspension or
seizure of any parts or products sold or intended to be sold by the
Company.
(xix) The
Company is not in violation, breach or default under its certificate of
incorporation, bylaws or other equivalent organizational or governing documents,
except where the violation is not reasonably likely to result in a Material
Adverse Effect.
(xx) Neither
the Company nor, to its Knowledge, any other party is in violation, breach
or default of any Contract that is reasonably likely to result in a Material
Adverse Effect or that is required to be disclosed in accordance with the
Exchange Act but is not so disclosed.
(xxi)
No supplier, customer, distributor or sales agent of the Company
has notified
the Company that it intends to discontinue or decrease the
rate of business done with the Company, except where such decrease is
not reasonably likely to result in a Material Adverse Effect.
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(xxii) There
are no claims, payments, issuances, arrangements or understandings for services
in the nature of a finder’s, consulting or origination fee with respect to the
introduction of the Company to Xxxx or the sale of the Shares hereunder or
any other arrangements, agreements, understandings, payments or issuances with
respect to the Company that may affect Xxxx’x compensation, as determined by
FINRA.
(xxiii) The
Company has not made any direct or indirect payments (in cash, securities or
otherwise) to (i) any person, as a finder’s fee, investing fee or otherwise, in
consideration of such person raising capital for the Company or introducing to
the Company persons who provided capital to the Company, (ii) any FINRA member,
or (iii) any person or entity that has any direct or indirect affiliation or
association with any FINRA member within the 12-month period prior to the date
on which the Registration Statement was filed with the Commission (“Filing Date”) or
thereafter.
(xxiv) To
the Company’s Knowledge, no (i) officer or director of the Company, (ii) owner
of 5% or more of the Company’s unregistered securities or (iii) owner of any
amount of the Company’s unregistered securities acquired within the 180-day
period prior to the Filing Date, has any direct or indirect affiliation or
association with any FINRA member.
(xxv) Other
than Xxxx, no person has the right to act as a placement agent, underwriter or
as a financial advisor in connection with the sale of the Shares contemplated
hereby.
(xxvi) No
transaction has occurred between or among the Company or its subsidiaries and
any of its officers or directors, stockholders or any affiliate or affiliates of
any such officer or director or stockholder that is required to be and is not
described in the Registration Statement and the Final Prospectus.
(xxvii) Except
as described in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus, the Company has established and maintains disclosure
controls and procedures (as defined in Rules 13a-14 and 15d-14 under the
Exchange Act) and such controls and procedures are effective in ensuring that
material information relating to the Company, including its subsidiaries, is
made known to the principal executive officer and the principal financial
officer. The Company has utilized such controls and procedures in
preparing and evaluating the disclosures included or incorporated by reference
in the Registration Statement and Prospectus.
(xxviii) Except
as described in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus, the Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv)
amounts reflected on the Company’s consolidated balance sheet for assets are
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
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5. Closing and
Settlement. Subject to the
terms and conditions hereof, payment of the purchase price for, and delivery of,
the Shares shall be made at one or more closings (each a “Closing” and the date
on which each Closing occurs, a “Closing Date”) at the
offices of Xxxx Capital Partners, LLC (or at such other place as shall be agreed
upon by Xxxx and the Company), the first such Closing to take place at
approximately 7:00 a.m., Pacific Daylight time, on April 6, 2010 (unless another
time shall be agreed to by Xxxx and the Company). On the trading day
following the date of this Agreement, and prior to the Closing Date, each
Investor will confirm their purchase price and the number of Shares they have
purchased with their custodian bank or prime broker. On the Closing
Date (i) the Investor will provide their purchase price by delivery of
immediately available funds versus receipt of their Shares through such
Investor’s executing broker’s delivery versus payment account established at
Xxxx, (ii) the Company will deliver, or cause to be delivered, to Xxxx, the
aggregate number of Shares purchased by Investors by authorizing the release of
the Shares to Xxxx’x clearing firm, Ridge Clearing & Outsourcing Solutions
DTC 0158 via DWAC delivery prior to the release of the federal funds wire to the
Company for payment of such Shares, (iii) Xxxx will deliver, or cause to be
delivered, to each Investor, such Investor’s Shares in accordance with the
instructions provided by such Investor on their executing broker’s account
versus payment for such Shares and (iv) Xxxx will deliver, or cause to be
delivered, to the Company, the aggregate purchase price of all Investors, minus
applicable fees and disbursements.
6. Covenants. The
Company covenants and agrees with Xxxx as follows:
(a) During
the period beginning on the date hereof and ending on the Closing Date (the
“Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement,
including any Rule 462 Registration Statement, the Time of Sale Disclosure
Package or the Final Prospectus, the Company shall furnish to Xxxx for review
and comment a copy of each such proposed amendment or supplement, and the
Company shall not file any such proposed amendment or supplement to which Xxxx
reasonably objects.
(b) From
the date of this Agreement until the end of the Prospectus Delivery Period, the
Company shall promptly advise Xxxx in writing (A) of the receipt of any comments
of, or requests for additional or supplemental information from, the Commission,
(B) of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to the Time of Sale
Disclosure Package or the Final Prospectus, (C) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and (D)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending its use
or the use of the Time of Sale Disclosure Package, or of any proceedings to
remove, suspend or terminate from listing or quotation the Common Stock from any
securities exchange upon which it is listed for trading or included or
designated for quotation, or of the threatening or initiation of any
proceedings for any of such purposes. If the Commission shall enter
any such stop order at any time during the Prospectus Delivery Period, the
Company will use its reasonable efforts to obtain the lifting of such order at
the earliest possible moment. Additionally, the Company agrees that
it shall comply with the provisions of Rules 424(b), 430A and 430B, as
applicable, under the Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under Rule 424(b) or Rule 433 were
received in a timely manner by the Commission (without reliance on Rule
424(b)(8) or Rule 164(b) of the Securities Act).
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(c) During
the Prospectus Delivery Period, the Company will comply with all requirements
imposed upon it by the Securities Act, as now and hereafter amended, and by the
Rules and Regulations, as from time to time in force, and by the Exchange Act,
as now and hereafter amended, so far as necessary to permit the continuance of
sales of or dealings in the Shares as contemplated by the provisions hereof, the
Registration Statement, the Time of Sale Disclosure Package and the Final
Prospectus. If during such period any event occurs the result of
which the Final Prospectus would include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or if during such
period it is necessary or appropriate in the opinion of the Company or its
counsel or Xxxx or its counsel to amend the Registration Statement or supplement
the Final Prospectus to comply with the Securities Act, the Company will
promptly notify Xxxx and will amend the Registration Statement or supplement the
Final Prospectus so as to correct such statement or omission or effect such
compliance.
(d) The
Company covenants that it will not, unless it obtains the prior written consent
of Xxxx, make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Act) required to be filed by
the Company with the Commission or retained by the Company under Rule 433 of the
Act. In the event that Xxxx expressly consents in writing to any such
free writing prospectus (a “Permitted Free Writing
Prospectus”), the Company covenants that it shall (i) treat each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)
comply with the requirements of Rule 164 and 433 of the Act applicable to such
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(e) The
Company will furnish to Xxxx and counsel for Xxxx copies of the Registration
Statement, the Final Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as Xxxx may
from time to time reasonably request.
(f) The
Company will not take, directly or indirectly, during the Prospectus Delivery
Period, any action designed to or which might reasonably be expected to cause or
result in, or that has constituted, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(g) The
Company, whether or not the transactions contemplated hereunder are consummated
or this Agreement is terminated, will pay or cause to be paid (A) all
expenses (including transfer taxes allocated to the respective transferees)
incurred in connection with the delivery
of the Shares, including the legal fees of Xxxx’x counsel, payable on the
Closing Date, not to exceed $35,000 for all such expenses and fees, (B) all
expenses and fees (including, without limitation, fees and expenses of the
Company’s counsel) in connection with the preparation, printing, filing,
delivery, and shipping of the Registration Statement (including the financial
statements therein and all amendments, schedules, and exhibits thereto), the
Shares, the Time of Sale Disclosure Package, the Final Prospectus, any Issuer
Free Writing Prospectus and any amendment thereof or supplement thereto, (C) the
fees and expenses of any transfer agent or registrar, (D) listing fees, if any,
and (E) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for
herein.
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(h) The
Company will not issue or sell any Common Stock or other equity or equity-linked
securities (excluding the conversion or exercise of any securities outstanding
on the date hereof, the issuance of any securities pursuant to compensatory
plans and the conversion or exercise of any securities issued pursuant to
compensatory plans) for a period of ninety (90) days following the date hereof,
unless Xxxx consents otherwise.
7. Conditions of
Xxxx’x Obligations. The obligations of Xxxx hereunder are
subject to the accuracy, as of the date hereof and at the applicable Closing
Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Company contained herein, the
performance by the Company of its obligations hereunder and the following
additional conditions:
(a) If
filing of the Final Prospectus, or any amendment or supplement thereto, is
required under the Securities Act or the Rules and Regulations, the Company
shall have filed the Final Prospectus (or such amendment or supplement) with the
Commission in the manner and within the time period so required (without
reliance on Rule 424(b)(8) or Rule 164(b) under the Securities Act); the
Registration Statement shall remain effective; no stop order suspending the
effectiveness of the Registration Statement or any part thereof, any Rule 462
Registration Statement, or any amendment thereof, nor suspending or preventing
the use of the Time of Sale Disclosure Package or the Final Prospectus shall
have been issued; no proceedings for the issuance of such an order shall have
been initiated or threatened; and any request of the Commission for additional
information (to be included in the Registration Statement, the Time of Sale
Disclosure Package, the Final Prospectus, or otherwise) shall have been complied
with to Xxxx’x satisfaction.
(b) Xxxx
shall not have reasonably determined and
advised the Company that the Registration Statement, the Time of Sale
Disclosure Package or the Final Prospectus, or any amendment thereof or
supplement thereto, contains an untrue statement of fact which, in Xxxx’x
reasonable opinion, is material, or omits to state a fact which, in Xxxx’x
reasonable opinion, is material and is required to be stated therein or
necessary to make the statements therein not misleading.
(c) On
the applicable Closing Date, there shall have been furnished to Xxxx the opinion
and negative assurance letters of counsel for the Company, dated the applicable
Closing Date and addressed to Xxxx, in form and substance reasonably
satisfactory to Xxxx, to the effect set forth in Schedule II.
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(d) Xxxx
shall have received a letter from X.X. Xxxx LLP, on the applicable Closing Date
addressed to Xxxx, confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualifications of accountants under Rule
2-01 of Regulation S-X of the Commission, and confirming, as of the date of each
such letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the
Time of Sale Disclosure Package, as of a date not more than five days prior to
the date of such letter), the conclusions and findings of said firm with respect
to the financial information, including any financial information contained in
Exchange Act Reports filed by the Company, and other matters reasonably required
by Xxxx consistent with customary practices for such letters.
(e) On
the applicable Closing Date, there shall have been furnished to Xxxx a
certificate, dated the applicable Closing Date and addressed to Xxxx, signed by
the chief executive officer and the chief financial officer of the Company, in
their capacity as officers of the Company, to the effect that:
(i) The
representations and warranties of the Company in this Agreement are true and
correct, in all material respects, as if made at and as of the applicable
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
applicable Closing Date;
(ii) No
stop order or other order (A) suspending the effectiveness of the Registration
Statement or any part thereof or any amendment thereof, (B) suspending the
qualification of the Shares for offering or sale, or (C) suspending or
preventing the use of the Time of Sale Disclosure Package or the Final
Prospectus has been issued, and no proceeding for that purpose has been
instituted or, to their Knowledge, is contemplated by the Commission or any
state or regulatory body; and
(iii) There
has been no occurrence of any event resulting or reasonably likely to result in
a Material Adverse Effect during the period from and after the date of this
Agreement and prior to the applicable Closing Date.
(f) Subsequent
to the execution and delivery of this Agreement, there shall not have occurred
any change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company, whether or not arising
in the ordinary course of business, which, in the reasonable judgment of Xxxx,
makes it impractical or inadvisable to proceed with Offering of the Shares as
contemplated hereby and in the Final Prospectus.
(g) The
Common Stock shall be registered under the Exchange Act and shall be listed on
AMEX, and the Company shall not have taken any action designed to terminate, or
likely to have the effect of terminating, the registration of the Common
Stock under the Exchange Act or delisting or suspending from trading the Common
Stock from AMEX, nor shall the Company have received any information suggesting
that the Commission is contemplating terminating such registration or
listing.
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(h) Xxxx
shall have received a certificate of the Company signed by the Secretary or
Assistant Secretary of the Company, dated as of the date of Closing Date,
certifying: (i) that the Certificate of Incorporation is true and complete,
has not been modified and is in full force and effect; (ii) that the bylaws of
the Company are true and complete, have not been modified and are in full force
and effect (iii) that the resolutions of the Company’s Board of Directors
relating to the Offering contemplated by this Agreement are in full force and
effect and have not been modified; and (iii) as to the incumbency of the
officers of the Company. The documents referred to in such
certificate shall be attached to such certificate.
(i) The
Company shall have furnished to Xxxx and counsel for Xxxx such additional
documents, certificates and evidence as Xxxx or counsel for Xxxx may have
reasonably requested.
If any condition specified in this
Section 7 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by Xxxx by notice to the Company at any time at
or prior to the applicable Closing Date and such termination shall be without
liability of any party to any other party, except that Section 1(b), Section
6(h), Section 8 and Section 9 shall survive any such termination and remain in
full force and effect.
8. Indemnification
and Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless Xxxx,
its affiliates, directors and officers and employees, and each
person, if any, who controls Xxxx within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any
losses, claims, damages or liabilities to which Xxxx or such person may become
subject, under the Securities Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the Registration
Statement at the time of effectiveness and at any subsequent time pursuant to
Rules 430A and 430B of the Rules and Regulations, the Time of Sale Disclosure
Package, the Final Prospectus, or any amendment or supplement thereto (including
any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Registration Statement or the Final Prospectus), or any
Issuer Free Writing Prospectus or in any materials or information provided
to Investors by, or with the written approval of, the Company in connection with
the marketing of the Offering of the Shares, including any roadshow or investor
presentations (whether in person or electronically) (“Marketing
Materials”), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (ii) in whole or in part, any inaccuracy
in the representations and warranties of the Company contained herein, or (iii)
in whole or in part, any failure of the Company to perform its obligations
hereunder or under law, and will reimburse Xxxx for any legal or other expenses
reasonably incurred by it in connection with evaluating, investigating or
defending against such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement,
the Time of Sale Disclosure Package, the Final Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any Marketing
Materials, in reliance upon and in conformity with written information furnished
to the Company by Xxxx specifically for use in the preparation
thereof.
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(b) Xxxx
will indemnify and hold harmless the Company, its affiliates, directors,
officers and employees, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any losses, claims, damages or liabilities to
which the Company may become subject, under the Securities Act or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Xxxx), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Time of Sale Disclosure Package, the Final
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any Marketing Materials, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Time of Sale Disclosure Package, the Final
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any Marketing Materials, in reliance upon and in conformity with
written information furnished to the Company by Xxxx specifically for use in the
preparation thereof, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with defending against
any such loss, claim, damage, liability or action.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent such indemnifying party has been materially prejudiced by
such failure. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party’s election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if (i) 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,
(ii) a conflict or potential conflict exists (based on the reasonable 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
(iii) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable
time after receiving notice of the commencement of the action, the indemnified
party shall have the right to employ a single counsel to represent it in any
claim in respect of which indemnity may be sought under subsection (a) or (b) of
this Section 8, in which event the reasonable and documented fees and expenses
of such separate counsel shall be borne by the indemnifying party or parties and
reimbursed to the indemnified party as incurred.
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The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is a party or could be named and indemnity was or would be
sought hereunder by such indemnified party, unless such settlement, compromise
or consent (a) includes an unconditional release of such indemnified party from
all liability for claims that are the subject matter of such action, suit or
proceeding and (b) 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) If
the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b),
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and Xxxx, on the other hand, from the Offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and Xxxx, on the other hand, in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and Xxxx, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the Offering (before deducting
expenses) received by the Company, and the total placement agent fees received
by Xxxx, in each case as set forth on the cover page of the Final Prospectus,
bear to the aggregate offering price of the Shares set forth on such
cover. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or Xxxx and the parties’ relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and Xxxx agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in the first sentence of this subsection (d). The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
that is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), Xxxx shall not be required
to contribute any amount in excess of the amount of Xxxx’x placement agent
fees actually
received by Xxxx from the Offering of the Shares. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
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(e) The
obligations of the Company under this Section 8 shall be in addition to any
liability that the Company may otherwise have and the benefits of such
obligations shall extend, upon the same terms and conditions, to each person, if
any, who controls Xxxx within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act; and the obligations of Xxxx under this Section 8
shall be in addition to any liability that Xxxx may otherwise have and the
benefits of such obligations shall extend, upon the same terms and conditions,
to the Company, and its officers, directors and each person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act.
(f) For
purposes of this Agreement, Xxxx confirms, and the Company acknowledges, that
there is no information concerning Xxxx furnished in writing to the Company by
Xxxx specifically for preparation of or inclusion in the Registration Statement,
the Time of Sale Disclosure Package or the Final Prospectus, other than the
statements regarding Xxxx set forth in the “Plan of Distribution” section of the
Final Prospectus and Time of Sale Disclosure Package, only insofar as such
statements relate to the amount of selling concession and related activities
that may be undertaken by Xxxx.
9. Representations
and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto including, but not limited to, the agreements of Xxxx and the
Company contained in Section 1(b), Section 6(h) and Section 8 hereof, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of Xxxx or any controlling person thereof, or the Company
or any of its officers, directors, or controlling persons, and shall survive
delivery of, and payment for, the Shares to and by Xxxx hereunder.
10. Notices. Except
as otherwise provided herein, all communications hereunder shall be in writing
and, if to Xxxx, shall be mailed, delivered or telecopied to Xxxx Capital
Partners, LLC, 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000,
telecopy number: (000)000-0000, Attention: Xxxx Xxxxxxxx, with a copy to
Xxxxxxxxxx & Xxxxx LLP, 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX
00000, telecopy number: (000)000-0000, Attention: Xxxxx Xxxxxxxxxx; and if to
the Company, shall be mailed, delivered or telecopied to it at 00 Xxxxxxxxx Xxxx.,
Xxxxxxxx, XX
00000, telecopy number: (000)000-0000, Attention: Chief Executive
Officer, with a copy to Xxxxxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, telecopy number: (000)000-0000, Attention: Xxxx Xxxxxx; or in each case
to such other address as the person to be notified may have requested in
writing. Any 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.
11. Persons Entitled
to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 8, except that the Investors under the Subscription
Agreement are third party beneficiaries of all covenants, agreements,
representations
and warranties of the Company set forth in this Agreement and are expressly
entitled to rely on all such agreements, covenants, representations and
warranties of the Company set forth therein. Except for the Investors
to the extent specified in the immediately preceding sentence, nothing in this
Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in respect of this
Agreement or any provision herein contained.
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12. Absence of
Fiduciary Relationship. The Company acknowledges and agrees
that: (a) Xxxx has been retained solely to act as placement agent in connection
with the sale of the Shares and that no fiduciary, advisory or agency
relationship between the Company and Xxxx has been created in respect of any of
the transactions contemplated by this Agreement, irrespective of whether Xxxx
has advised or is advising the Company on other matters; (b) the price and other
terms of the Shares set forth in this Agreement were established by Xxxx and the
Investors following discussions and arms-length negotiations and the Company is
capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated by this Agreement; (c) it
has been advised that Xxxx and its affiliates are engaged in a broad range of
transactions that may involve interests that differ from those of the Company
and that Xxxx has no obligation to disclose such interest and transactions to
the Company by virtue of any fiduciary, advisory or agency relationship; (d) it
has been advised that Xxxx is acting, in respect of the transactions
contemplated by this Agreement, solely for the benefit of Xxxx, and not on
behalf of the Company.
13. No
Limitations. Nothing in this Agreement shall be construed to
limit the ability of Xxxx or its affiliates to (a) trade in the Company’s or any
other company’s securities or publish research on the Company or any other
company, subject to applicable law, or (b) pursue or engage in investment
banking, financial advisory or other business relationships with entities that
may be engaged in or contemplate engaging in, or acquiring or disposing of,
businesses that are similar to or competitive with the business of the
Company.
14. Amendments and
Waivers. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. The failure of a party to exercise any right or remedy shall
not be deemed or constitute a waiver of such right or remedy in the
future. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (regardless of
whether similar), nor shall any such waiver be deemed or constitute a continuing
waiver unless otherwise expressly provided.
15. Partial
Unenforceability. The invalidity or unenforceability of any
section, paragraph, clause or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph, clause or
provision.
16. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
17. Counterparts. This
Agreement may be executed and delivered (including by facsimile transmission and
electronic mail attaching a portable document file (.pdf)) in one or more
counterparts and, if executed and delivered in more than one counterpart, the
executed counterparts
shall each be deemed to be an original and all such counterparts shall together
constitute one and the same instrument.
[Remainder
of page intentionally left blank]
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Please
sign and return to the Company the enclosed duplicates of this letter whereupon
this letter will become a binding agreement between the Company and Xxxx in
accordance with its terms.
Very
truly yours,
CPI
AEROSTRUCTURES, INC.
By:
/s/ Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title:
Chief Financial Officer and Secretary
Confirmed
as of the date first above-
mentioned
by Xxxx.
XXXX
CAPITAL PARTNERS, LLC
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Managing Director
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