TG THERAPEUTICS, INC. Common Stock (par value $0.001 per share) At Market Issuance Sales Agreement
Common
Stock
(par
value $0.001 per share)
May
26, 2017
Xxxxxxxxx
LLC
000
Xxxxxxx Xxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
FBR
Capital Markets & Co.
0000
Xxxxx 00xx
Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxxx 00000
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
0000
Xxxxxxxxx Xxxx, XX, 0xx Xxxxx
Xxxxxxx,
XX 00000
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
X.X.
Xxxxxxxxxx & Co., LLC
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
TG
Therapeutics, Inc. (the “Company”), confirms its
agreement (this “Agreement") with Xxxxxxxxx LLC,
Xxxxxx Xxxxxxxxxx & Co., FBR Capital Markets & Co.,
SunTrust Xxxxxxxx Xxxxxxxx, Inc., Xxxxxxx Xxxxx & Associates,
Inc., Ladenburg Xxxxxxxx & Co. Inc. and X.X. Xxxxxxxxxx &
Co., LLC (each individually an "Agent” and 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 the Agents, 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 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 (as defined below) or (c) exceeds the number of
authorized but unissued shares of Common Stock (the lesser of (a),
(b) and (c), the “Maximum Amount”).
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 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 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 (the “Current Registration
Statement”), including a prospectus relating to the Placement
Shares to be issued from time to time by the Company, 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 will, if necessary, prepare a prospectus supplement to the
prospectus included as part of such registration statement
specifically relating to the Placement Shares (the
“Prospectus
Supplement”). The Company will furnish to the Agents,
for use by the Agents, copies of the prospectus relating to the
Placement Shares included as part of such registration statement,
as supplemented by the Prospectus Supplement, if any. 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 securities registered pursuant the Current Registration
Statement, including any Placement Shares, as a result of the end
of the three-year period described in Rule 415(a)(5) of the
Securities Act, is herein called the “Registration Statement.”
The prospectus specifically relating to 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 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, 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 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 hereunder (each,
a “Placement”), it will
notify an Agent (the “Designated Agent”) by
email notice (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, 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. Provided that the Company is otherwise
in compliance with the terms of this Agreement, the Placement
Notice shall be effective immediately upon receipt by the
Designated Agent unless and until (i) the Designated Agent declines
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 suspends or terminates
the Placement Notice 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 Agents 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
Designated Agent. 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 Stock Market LLC (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 of the Securities Act.
Subject to the terms of a Placement Notice, the Designated Agent
may also sell Placement Shares by any other method permitted by
law, including but not limited to negotiated transactions, with the
Company’s consent. “Trading Day” means any
day on which Common Stock is purchased and sold on the
Exchange.
b. For such time as an
Agent is serving as Designated Agent and is actively offering
Placement Shares pursuant to this agreement, such Agent shall not
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 such
Agent does not own for the account of such Agent or any sale which
is consummated by the delivery of a security of the Company
borrowed by, or for the account of, such Agent, or (iii) any
proprietary trading or trading for such Agent’s own account.
For the avoidance of doubt, this restriction shall not apply to
transactions by or on behalf of any customer of such Agent or
transactions by such Agent to facilitate any such transactions by
or on behalf of any customer of such Agent.
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; 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. 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 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 law and regulations 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 third
(3rd)
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
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 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, 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
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.
Further, under no circumstances shall the Company cause or permit
the aggregate offering amount of Placement Shares sold pursuant to
this Agreement to exceed the Maximum Amount.
e. Sales Through Agents. The
Company agrees that any offer to sell, any solicitation of an offer
to buy, or any sales of Common Stock or any other equity security
of the Company shall only be effected by or through an Agent, and
only a single Agent, on any single given date, and in no event
shall the Company request that more than one Agent sell Securities
on the same day; provided however that (i) the foregoing limitation
shall not apply to (A) exercise of any option, warrant, right or
any conversion privilege set forth in the instruction governing
such securities, (B) sales solely to employees, directors or
security holders of the Company or its subsidiaries, or to a
trustee or other person acquiring such securities for the accounts
of such person and (ii) such limitation shall not apply (A) on any
day during which no sales are made pursuant to this Agreement or
(B) during a period in which the Company has notified the Agents
that it will not sell Common Stock under this Agreement and (1) no
Placement Notice is pending or (2) after a Placement Notice has
been withdrawn.
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 each of 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. The Company and, assuming no act or omission on
the part of the Agents that would make such 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 has been declared effective under the Securities
Act. The Prospectus Supplement will name Xxxxxxxxx LLC, Xxxxxx
Xxxxxxxxxx & Co., FBR Capital Markets & Co., SunTrust
Xxxxxxxx Xxxxxxxx, Inc., Xxxxxxx Xxxxx & Associates, Inc.,
Ladenburg Xxxxxxxx & Co. Inc. and X.X. Xxxxxxxxxx & Co.,
LLC 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.
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 their 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 (as defined below) to which the Agents have
consented. The Common Stock is currently quoted on the Exchange.
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. The Company has no reason to believe that it will not
in the foreseeable future continue to be in compliance with all
such listing and maintenance requirements.
b. No Misstatement or Omission.
The Registration Statement, when it became effective, and the
Prospectus, and any amendment or supplement thereto, on the date of
such Prospectus or amendment or supplement, conformed and will
conform in all material respects with the requirements of the
Securities Act. 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 became or becomes effective, did
not, and 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 statements in, or
omissions from, any such document made in reliance upon, and in
conformity with, the Agents' Information.
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
for the periods specified and have been prepared in compliance with
the 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 for such adjustments to accounting
standards and practices as are noted therein) during the periods
involved; the other financial and statistical 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
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 as a corporation and in
good standing under the laws of their respective jurisdictions of
organization. The Company and the Subsidiaries are, and will be,
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, have a
material adverse effect or would reasonably be expected to have a
material adverse effect on the assets, business, operations,
earnings, properties, condition (financial or otherwise),
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. As of the date
hereof, the Company’s only Subsidiaries are set forth on
Schedule 6(g). 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.
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 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, 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 have 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 reasonably be expected to have 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 involving a prospective Material
Adverse Effect, in or affecting the business, properties,
management, condition (financial or otherwise), results of
operations, or prospects of the Company and the Subsidiaries taken
as a whole, (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 under the Company’s existing stock
option plans, (B) changes in the number 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, (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.
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 under the
Company’s existing stock option plans, (ii) changes in the
number 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, (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. 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.
l. Authorization; Enforceability.
The Company has full legal right, 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 legal, 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 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 an Agent 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 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 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 Exchange, in
connection with the sale of the Placement Shares by the
Agents.
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 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 or upon the exercise
of options that may be granted from time to time under the
Company’s stock option plans), (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 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.
p. Independent Public Accountant.
The Company’s accountants whose report on the consolidated
financial statements of the Company is filed with or incorporated
into 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, are and, during the
periods covered by their report, were independent public
accountants within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the
Company’s knowledge, with due inquiry, the Company’s
accountants are 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 expressly
referenced in the Prospectus, other than such agreements that have
expired by their terms or whose termination is disclosed in
documents filed by the Company on XXXXX, are legal, valid and
binding obligations of the Company 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
unreasonably be expected to have a Material Adverse
Effect.
r. No Litigation. There are no
legal, governmental or regulatory actions, suits or proceedings
pending, nor, to the Company’s knowledge, any legal,
governmental or regulatory investigations, to which the Company or
a Subsidiary is a party or to which any property of the Company or
any Subsidiary is the subject that, individually or in the
aggregate, if determined adversely to the Company or any
Subsidiary, would reasonably be expected to have a Material Adverse
Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement; to the
Company’s knowledge, no such actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory
authority or threatened by others that, individually or in the
aggregate, if determined adversely to the Company or any
Subsidiary, would reasonably be expected to have a Material Adverse
Effect; and (i) there are no current or pending legal, governmental
or regulatory investigations, actions, suits or proceedings that
are required under the Securities Act to be described in the
Prospectus that are not described in the Prospectus including any
Incorporated Document; and (ii) there are no contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement that are not so
filed.
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 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 have a
Material Adverse Effect. Neither the Company nor any Subsidiary
have 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
have 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,
could reasonably be expected to have 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
have a Material Adverse Effect.
u. Certain Market Activities.
Neither the Company, nor any Subsidiary, nor any of their
respective directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or that has
constituted or would reasonably be expected to 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. No Reliance. The Company has
not relied upon the Agents or legal counsel for the Agents for any
legal, tax or accounting advice in connection with the offering and
sale of the Placement Shares.
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 have 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 had, 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 could have a
Material Adverse Effect.
y. Title to Real and Personal
Property. The Company and the Subsidiaries have good and
valid title in fee simple 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 reasonably be expected, individually
or in the aggregate, to have 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, existing and enforceable 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 be reasonably expected, individually or in the aggregate,
to have a Material Adverse Effect.
z. Intellectual Property. The
Company and the Subsidiaries own or possess adequate enforceable
rights to use all patents, patent applications, trademarks (both
registered and unregistered), service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, 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 have a Material Adverse
Effect; the Company and the 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 against the Company or its Subsidiaries
challenging the Company’s or any of its Subsidiary’s
rights in or to or the validity of the scope of any of the
Company’s or any Subsidiary’s 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 Subsidiary’s 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 and the Subsidiaries have 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. 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 have a Material Adverse Effect.
bb. Disclosure Controls. The
Company maintains systems 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) for the Company
and designed such disclosure controls and procedures to ensure that
material information relating to the Company and the Subsidiaries
is made known to the certifying officers by others within those
entities, particularly during the period in which the
Company’s Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, is being prepared. 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 Form 10-K for
the fiscal year most recently ended (such date, the
“Evaluation
Date”). The Company presented in its 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. Since the most recent Evaluation Date, there have
been no significant changes in the Company’s internal
controls (as such term is defined in Item 307(b) of Regulation S-K
under the Securities Act) or, to the Company’s knowledge, in
other factors that could significantly affect the Company’s
internal controls. To the knowledge of the Company, the
Company’s “internal controls over financial
reporting” and “disclosure controls and
procedures” are effective.
cc. 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 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.
dd. 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.
ee. 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 expected to result in a
Material Adverse Effect.
ff. 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 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”).
gg. 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 (collectively, the
“Money Laundering
Laws”), except as 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.
hh. 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 could 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.
ii. 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.
jj. ERISA. To the knowledge of the
Company, 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”); 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 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) exceeds the
present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions.
kk. Forward-Looking Statements. No
forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) (a
“Forward-Looking
Statement”) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith. The
Forward-Looking Statements incorporated by reference in the
Registration Statement and the Prospectus from the Company’s
Annual Report on Form 10-K for the fiscal year most recently ended
(i) except for any Forward-Looking Statement included in any
financial statements and notes thereto, are within the coverage of
the safe harbor for forward looking statements set forth in Section
27A of the Securities Act, Rule 175(b) under the Securities Act or
Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by
the Company with a reasonable basis and in good faith and reflect
the Company’s good faith commercially reasonable best
estimate of the matters described therein as of the respective
dates on which such statements were made, and (iii) have been
prepared in accordance with Item 10 of Regulation S-K under the
Securities Act.
ll. 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.
mm. 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
and as is customary for companies of similar size engaged in
similar businesses in similar industries.
nn. 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.
oo. Status Under the Securities
Act. The Company was not and is not an ineligible issuer as
defined in Rule 405 at the times specified in Rules 164 and 433
under the Securities Act in connection with the offering of the
Placement Shares.
pp. 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 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.
qq. 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 and therein, nor the compliance by
the Company with the terms and provisions hereof and thereof 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 have 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 have a Material
Adverse Effect.
rr. Compliance with Applicable
Laws. The Company and the Subsidiaries: (A) are and at all
times have been in material compliance with all statutes, rules and
regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing,
labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any product under development, manufactured or
distributed by the Company or the Subsidiaries (“Applicable Laws”), (b)
have not received any Form 483 from the FDA, notice of adverse
finding, warning letter, or other written correspondence or notice
from the FDA, the European Medicines Agency (the
“EMA”),
or any other federal, state, local or foreign governmental or
regulatory authority alleging or asserting material noncompliance
with any Applicable Laws or any licenses, certificates, approvals,
clearances, authorizations, permits and supplements or amendments
thereto required by any such Applicable Laws (“Authorizations”), which
would, individually or in the aggregate, result in a Material
Adverse Effect; (C) possess all material Authorizations and such
Authorizations are valid and in full force and effect and neither
the Company nor the Subsidiaries is in material violation of any
term of any such Authorizations; (D) have not received written
notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from the
FDA, the EMA, or any other federal, state, local or foreign
governmental or regulatory authority or third party alleging that
any Company product, operation or activity is in material violation
of any Applicable Laws or Authorizations and has no knowledge that
the FDA, the EMA, or any other federal, state, local or foreign
governmental or regulatory authority or third party is considering
any such claim, litigation, arbitration, action, suit,
investigation or proceeding against the Company; (E) have not
received notice that the FDA, EMA, or any other federal, state,
local or foreign governmental or regulatory authority has taken, is
taking or intends to take action to limit, suspend, modify or
revoke any material Authorizations and has no knowledge that the
FDA, EMA, or any other federal, state, local or foreign
governmental or regulatory authority is considering such action;
and (F) have filed, obtained, maintained or submitted all reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any
Applicable Laws or Authorizations except where the failure to file
such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments would not result
in a Material Adverse Effect, and that all such reports, documents,
forms, notices, applications, records, claims, submissions and
supplements or amendments were materially complete and correct on
the date filed (or were corrected or supplemented by a subsequent
submission).
ss. Clinical Studies. All animal
and other preclinical studies and clinical trials conducted by the
Company or on behalf of the Company were, and, if still pending
are, to the Company’s knowledge, being conducted in all
material respects in compliance with all Applicable Laws and in
accordance with experimental protocols, procedures and controls
generally used by qualified experts in the preclinical study and
clinical trials of new drugs and biologics as applied to comparable
products to those being developed by the Company; the descriptions
of the results of such preclinical studies and clinical trials
contained in the Registration Statement and the Prospectus are
accurate in all material respects, and, except as set forth in the
Registration Statement and the Prospectus, the Company has no
knowledge of any other clinical trials or preclinical studies, the
results of which reasonably call into question the clinical trial
or preclinical study results described or referred to in the
Registration Statement and the Prospectus when viewed in the
context in which such results are described; and the Company has
not received any written notices or correspondence from the FDA,
the EMA, or any other domestic or foreign governmental agency
requiring the termination or suspension of any preclinical studies
or clinical trials conducted by or on behalf of the Company that
are described in the Registration Statement and the Prospectus or
the results of which are referred to in the Registration Statement
and the Prospectus.
tt. Compliance Program. The Company
has established and administers a compliance program applicable to
the Company, to assist the Company and the directors, officers and
employees of the Company in complying with applicable regulatory
guidelines (including, without limitation, those administered by
the FDA, the EMA, and any other foreign, federal, state or local
governmental or regulatory authority performing functions similar
to those performed by the FDA or EMA); except where such
noncompliance would not reasonably be expected to have a Material
Adverse Effect.
uu. OFAC.
(i) The Company
represents that, neither the Company nor any Subsidiary
(collectively, the “Entity”) or 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:
(a) 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
(b) located, organized
or resident in a country or territory that is the subject of
Sanctions.
(ii)
The Entity represents and covenants that it 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:
(a) 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
(b) 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
Prospectus, for the past 5 years, it has not knowingly engaged in,
is not now knowingly engaged in, and will not engage in, any
dealings 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.
vv. Stock Transfer Taxes. On each
Settlement Date, all stock transfer or other taxes (other than
income taxes) which are required to be paid 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.
Any
certificate signed by an officer of the Company and delivered to an
Agent 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 each of 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, promptly upon
the Agents’ request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Agents’
reasonable opinion, may be necessary or advisable in connection
with the distribution of the Placement Shares by an Agent
(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 into the Placement Shares 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 related to the transaction herein provided;
and provided, further, that the only remedy the Agents shall have
with respect to the failure by the Company to obtain such consent
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 or
threatened 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 promptly 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 comply 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 430A 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 430A
and to notify the Agents promptly of all such filings. 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 each of the Distribution Agents reasonably designates 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 or file a general
consent to service of process in any jurisdiction.
e. Delivery of Registration Statement and
Prospectus. The Company will furnish to the Agents and their
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 the
Agents’ 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 be required 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 employee or director stock option or
benefits plan, stock ownership plan or dividend reinvestment plan
(but not Common Stock subject to a waiver to exceed plan limits in
its dividend reinvestment plan) of the Company 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, and (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.
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
their 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, 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
filing under Rule 424(b), 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 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
any Agent 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 sell 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 written opinions and a
negative assurance letter of Xxxxxx & Bird LLP ("Company Counsel”), or
other counsel reasonably satisfactory to the Agents, in the form
attached hereto as Exhibit 7(m)(1) and 7(m)(2), respectively.
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, and not more than once per calendar
quarter, the Company shall cause to be furnished to the Agents a
written letter of Company Counsel in the form attached hereto as
Exhibit 7(m)(2), modified, as necessary, to relate to the
Registration Statement and the Prospectus as then amended or
supplemented; 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,
other than pursuant to Section 7(l)(iii), 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); provided, that if
requested by an Agent, the Company shall cause a Comfort Letter to
be furnished to the Agents within ten (10) Trading Days of such
request following the date of occurrence of any restatement of the
Company’s financial statements. The Comfort Letter from the
Company’s independent accountants shall be in a form and
substance reasonably satisfactory to the Agents, (i) confirming
that they are an independent public accounting firm within the
meaning of the Securities Act and the PCAOB, (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 Common Stock or (ii) sell, bid for, or purchase 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 their capacity as agents hereunder pursuant to
Section 23, neither
of the Agents nor the Company (including its agents and
representatives, other than the Agents in their capacity as such)
will make, use, prepare, authorize, approve or refer to any written
communication (as defined in Rule 405), 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 such controls and other procedures,
including, without limitation, those required by Sections 302 and
906 of the Xxxxxxxx-Xxxxx Act, and the applicable regulations
thereunder that are designed to ensure that information required to
be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the
Commission’s rules and forms, including, without limitation,
controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is accumulated and
communicated to the Company’s management, including its
principal executive officer and principal financial officer, or
persons performing similar functions, as appropriate to allow
timely decisions regarding required disclosure and to ensure that
material information relating to the Company or the Subsidiaries is
made known to them by others within those entities, particularly
during the period in which such periodic reports are being
prepared.
8. Representations and Covenants of the
Agents. Each of the Agents 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 of the Agents 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 of the Agents
shall comply with all applicable law and regulations, including but
not limited to Regulation M, in connection with the transactions
contemplated by this Agreement, including the issuance and sale
through the Agents 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 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
fees and disbursements of counsel to the Agents up to $20,000; (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, to the due performance 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 satisfaction (or waiver by each of the Agents in
its 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 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 the initiation or
threatening of 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
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the
making of any changes in the Registration Statement, the Prospectus
or documents 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, 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 Agents’ reasonable opinion is material, or omits to state
a fact that in the Agents’ 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 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 could reasonably
be expected to cause 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 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. Legal Opinion. The Agents shall
have received the opinions and negative assurances of Company
Counsel required to be delivered pursuant Section 7(m) on or before the
date on which such delivery of such opinions are required pursuant
to Section
7(m).
f. 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).
g. 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).
h. 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 satisfactory to the
Agents and their counsel.
i. 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.
j. 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. All such opinions, certificates, letters and
other documents will be in compliance with the provisions hereof.
The Company will furnish the Agents with such conformed copies of
such opinions, certificates, letters and other documents as the
Agents shall reasonably request.
k. 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.
l. 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.
m. 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 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 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) solely in reliance upon and in conformity
with the Agents’ Information.
(b) Indemnification by the
Agents. Each Agent agrees
to indemnify and hold harmless the Company and its directors and
each officer of the Company who signed the Registration Statement,
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 the Agents’ Information.
(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 so to 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 provision 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 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 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 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 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 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 (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 such Agent, 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
such Agent, 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 each Agent 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), an Agent 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 an Agent, will have the same
rights to contribution as that party, and each officer and director
of the Company who signed the Registration Statement 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. The Agents’ respective obligations to
contribute pursuant to this Section 11(d) are several in
proportion to the respective number of Placement Shares they have
sold hereunder, and not joint.
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 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 is reasonably likely to have a
Material Adverse Effect or, 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 an Agent elects to terminate
this Agreement as provided in this Section 13(a), such Agent shall
provide the required notice as specified in Section 14
(Notices).
b. The Company shall
have the right, by giving ten (10) 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 of the Agents
shall have the right, by giving ten (10) 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 an Agent under this Agreement.
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:
Xxxxxxxxx
LLC
000
Xxxxxxx Xxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx Xxxxx
Telephone:(000) 000-0000
Email:
Xxxxxx@xxxxxxxxx.xxx
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Capital Markets / Xxxxxxx Xxxxx
Facsimile:000-000-0000
With
a copy to: General Counsel
Facsimile:000-000-0000
FBR
Capital Markets & Co.
0000
Xxxxx 00xx Xxxxxx
Xxxxx
0000
Xxxxxxxxx, Xxxxxxxx
00000
Attention:Legal
Department
Telephone: (000)
000-0000
Email:
xxxxxxx@xxx.xxx
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
0000
Xxxxxxxxx Xxxx, XX, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention: Equity Syndicate
Facsimile: (000)
000-0000
Xxxxxxx
Xxxxx & Associates, Inc.
000
Xxxx Xxxxxx, Xxxxx 000
Xxx
Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone:000-000-0000
Email:
Xxxxx.xxxxxxx@xxxxxxxxxxxx.xxx
Facsimile:000-000-0000
Attention: Xxxxxx Xxxxx
Telephone:000-000-0000
Email:
Xxxxxx.xxxxx@xxxxxxxxxxxx.xxx
Facsimile:000-000-0000
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:Xxxxxx
Xxxxxxxxxxxx, Counsel
Tel:
(000) 000-0000
Email:
xxxxxxxxxxxxx@xxxxxxxxx.xxx
X.X.
Xxxxxxxxxx & Co., LLC
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx Viklund, CEO
Telephone: 000-000-0000
Email:
xxxxxxx@xxxxx.xxx and
xxx@xxxxx.xxx
with a
copy to:
Xxxxx
Xxxxxx LLP
One
Riverfront Plaza
0000
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx,
Xxx Xxxxxx 00000-0000
Attention: Xxxxx
X. Xxxxx
Telephone: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxxxx.xxx
and if
to the Company, shall be delivered to:
0
Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx X.
Power
Telephone: (000)
000-0000
Email:
xx@xxxxxxx.xxx
with a
copy to:
Xxxxxx
& Bird LLP
00 Xxxx
Xxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx X.
XxXxxxxxx, Esq.
Telephone:
(000)
000-0000
Email:
xxxx.xxxxxxxxx@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 (with an original to follow)
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.
An
electronic communication (“Electronic Notice”) shall
be deemed written notice for purposes of this Section 14 if sent to the
electronic mail address specified by the receiving party under
separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives confirmation of
receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on
paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of
receipt of the written request for Nonelectronic
Notice.
15. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and each Agent 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 party 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 each of 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 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.
22. Effect of Headings. The section
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 each of the Agents, and each of the Agents
represents, warrants and agrees that, unless it obtains the prior
consent of the Company, 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,
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, and has complied and
will comply with the requirements of Rule 433 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 in connection with the public 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 Agents, 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 such Agent has advised or
is advising the Company on other matters, and no Agent has any
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. No Agent has
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
each Agent and its respective affiliates are engaged in a broad
range of transactions which may involve interests that differ from
those of the Company and such Agent has 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 an
Agent 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 such Agent 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 such Agent’s obligations under this Agreement and
to keep information provided by the Company to such Agent and its
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:
“Agents’
Information” the parties acknowledge that no
information was provided by or on behalf of the
Agents.
“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, 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 each Agent, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and each of the
Agents.
Very
truly yours,
By:
_/s/ Xxxx X.
Power___________________________
Xxxx X.
Power
Chief
Financial Officer
ACCEPTED
as of the date first-above written:
XXXXXXXXX
LLC
By:
/s/
Name:
Title:
CANTOR
XXXXXXXXXX & CO.
By:
/s/
Name:
Title:
FBR
CAPITAL MARKETS & CO.
By:
/s/
Name:
Xxxxxxx
XxXxxxxx
Title:
Co-Head of Capital
Markets
SUNTRUST
XXXXXXXX XXXXXXXX, INC.
By:
/s/
Name:
Title:
XXXXXXX
XXXXX & ASSOCIATES, INC.
By:
/s/
Name:
Title:
LADENBURG
XXXXXXXX & CO. INC.
By:
/s/
Name:
Title:
X.X.
XXXXXXXXXX & CO., LLC
By:
/s/
Name:
Title:
SCHEDULE 1
FORM OF
PLACEMENT NOTICE
From: TG Therapeutics,
Inc.
To: [●]
Attention: [●]
Subject: At Market Issuance--Placement Notice
Date: ________________,
20__
Gentlemen:
Pursuant to the
terms and subject to the conditions contained in the At Market
Issuance Sales Agreement between TG Therapeutics, Inc., a Delaware
corporation (the “Company"), and Xxxxxxxxx LLC,
Xxxxxx Xxxxxxxxxx & Co., FBR Capital Markets & Co.,
SunTrust Xxxxxxxx Xxxxxxxx, Inc., Xxxxxxx Xxxxx & Associates,
Inc., Ladenburg Xxxxxxxx & Co. Inc. and X.X. Xxxxxxxxxx &
Co., LLC (each individually an "Agent” and collectively
the “Agents”), dated May 26,
2017, the Company hereby requests that [the Designated Agent] sell up to
[_______] shares of the Company’s Common Stock, $0.001 par
value per share, at a minimum market price of $[] per share, during
the time period beginning [month, day, time] and ending [month,
day, time].
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.
SCHEDULE 3
________________________
Notice Parties
________________________
The Company
Xxxx
Xxxxx
Xxxxxxxxx LLC
Xxxxxx
Xxxxx
Xxxxx
Xxxx
Xxxxxxx
Xxxxxx
Xxxx
Xxxxxx
Xxxxxx
Xxxxxxxxx
Cantor Xxxxxxxxxx & Co.
Xxxxxxx
Xxxxx
Xxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
With
copies to:
FBR Capital Markets & Co.
Xxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxxxx
Xxxx
Xxxxxxx
Xxxxxxx
XxXxxxxx
Xxxxx
Xxxxxxxxx
with a
copy to
SunTrust Xxxxxxxx Xxxxxxxx, Inc.
Xxxxx
Xxxxxxxxx
Geoff
Xxxxxx
Xxxxxxx Xxxxx & Associates, Inc.
Xxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxxx
Xxxxx
Xxxxxxxxx Xxxxxxxx & Co. Inc.
Xxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxx
Xxx
Xxxxxx
X. X. Xxxxxxxxxx & Co., LLC
Xxxxx
Xxxxxxxxx
Xxxxxxx
Xxxxxxxx
With a
copy to
SCHEDULE 6(g)
________________________
Subsidiaries
________________________
Ariston
Pharmaceuticals, Inc.
TG
Biologics, Inc.
EXHIBIT 7(1)
Form of Representation Date Certificate
_______________, 20___
This
Representation Date Certificate (this “Certificate”) is executed
and delivered in connection with Section 7(1) of the At Market
Issuance Sales Agreement (the “Agreement”), dated May
26, 2017, and entered into between TG Therapeutics, Inc. (the
“Company")
and Xxxxxxxxx LLC, Cantor Xxxxxxxxxx & Co., FBR Capital Markets
& Co., SunTrust Xxxxxxxx Xxxxxxxx, Inc., Xxxxxxx Xxxxx &
Associates, Inc., Ladenburg Xxxxxxxx & Co. Inc. and X.X.
Xxxxxxxxxx & Co., LLC (each individually an "Agent” and collectively
the “Agents”). All capitalized
terms used but not defined herein shall have the meanings given to
such terms in the Agreement.
The
Company hereby certifies as follows:
1. As of the date of
this Certificate (i) the Registration Statement does not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading and (ii) neither the
Registration Statement nor the Prospectus contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading and (iii) no event has occurred as a
result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or
misleading for this paragraph 1 to be true.
2. Each of the
representations and warranties of the Company contained in the
Agreement were, when originally made, and are, as of the date of
this Certificate, true and correct in all material
respects.
3. Except as waived by
the Agents in writing, each of the covenants required to be
performed by the Company in the Agreement on or prior to the date
of the Agreement, this Representation Date, and each such other
date prior to the date hereof as set forth in the Agreement, has
been duly, timely and fully performed in all material respects and
each condition required to be complied with by the Company on or
prior to the date of the Agreement, this Representation Date, and
each such other date prior to the date hereof as set forth in the
Agreement has been duly, timely and fully complied with in all
material respects.
4. Subsequent to the
date of the most recent financial statements in the Prospectus, and
except as described in the Prospectus, including Incorporated
Documents, there has been no Material Adverse Effect.
5. No stop order
suspending the effectiveness of the Registration Statement or of
any part thereof has been issued, and no proceedings for that
purpose have been instituted or are pending or threatened by any
securities or other governmental authority (including, without
limitation, the Commission).
6. No order suspending
the effectiveness of the Registration Statement or the
qualification or registration of the Placement Shares under the
securities or Blue Sky laws of any jurisdiction are in effect and
no proceeding for such purpose is pending before, or threatened, to
the Company’s knowledge or in writing by, any securities or
other governmental authority (including, without limitation, the
Commission).
The
undersigned has executed this Representation Date Certificate as of
the date first written above.
By:
Name:
Title:
EXHIBIT 7(m)(1)
Form of Legal Opinion
1)
The
Company/Subsidiary is a corporation duly formed and validly
existing in good standing under the laws of the State of
Delaware.
2)
The
Company/Subsidiary is duly qualified to do business as a foreign
corporation in each jurisdiction in which the Company/Subsidiary
owns any material property or conducts any material business or in
which the failure to be qualified as a foreign corporation would
have a Material Adverse Effect.
3)
The
Company/Subsidiary has the corporate power to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus.
4)
The execution and
delivery by the Company of, and the performance by the Company of
its obligations under, the Sales Agreement has been duly authorized
by all necessary corporate action on the part of the
Company.
5)
The Placement
Shares, when issued and delivered by the Company in accordance with
the terms of the Sales Agreement against payment of the
consideration set forth therein, will be duly authorized, validly
issued, fully paid and nonassessable.
6)
The issuance and
sale of the Placement Shares by the Company is not subject to
preemptive or other similar rights arising under the charter or
bylaws of the Company or under any agreement to which the Company
is a party.
7)
The execution,
delivery and performance of the Sales Agreement by the Company and
the transactions contemplated thereby do not conflict with, or
result in any breach of, or constitute a default under (nor
constitute an event that with notice, lapse of time or both would
constitute a breach of or default under), (i) the charter or bylaws
of the Company, (ii) any agreement to which the Company is a party
or (iii) any Applicable Law or, to our knowledge, any decree,
judgment or order applicable to the Company (other than state and
foreign securities or blue sky laws, as to which we express no
opinion), except in the case of clauses (ii) and (iii) for such
conflicts, breaches or defaults, which individually or in the
aggregate could not be reasonably expected to have a Material
Adverse Effect..
8)
No approval, notice
to, consent, authorization or order of any court or governmental
agency, body or official is required to be made or obtained to
permit the Company to issue and sell the Placement Shares, other
than as may be required under the Securities Act, the Exchange Act,
blue sky laws of any state, the NASDAQ Capital Market, or the rules
and regulations of the Financial Industry Regulatory Authority
(“FINRA”).
9)
To our knowledge,
except as described in the Registration Statement and the
Prospectus, there are no persons with registration rights or other
similar rights to have any securities of the Company registered
pursuant to the Registration Statement.
10)
The Registration
Statement, as of the date it became effective under the Securities
Act and as of the date hereof, and the Prospectus, as of its date
and the date hereof (in each case other than the financial
statements and schedules and other financial data included or
incorporated by reference therein, as to which we express no
opinion), complied as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of
the Commission promulgated thereunder.
11)
The Registration
Statement has become effective under the Securities Act and, to our
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending
or threatened by the Commission. The Prospectus has been filed in
the manner and within the time period required by Rule 424(b) under
the Securities Act.
12)
The Company is not
an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended, (the “1940
Act”) or a company “controlled” by an
“investment company” within the meaning of the 1940
Act.
EXHIBIT 7(m)(2)
Form of Negative Assurance Letter
We have
reviewed the Registration Statement and the Prospectus and
participated in conferences with officers and other representatives
of the Company, representatives of independent public accountants
for the Company at which the contents of the Registration Statement
and the Prospectus and related matters were discussed, and although
we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained
or incorporated by reference in the Registration Statement and the
Prospectus and have not made any independent check or verification
thereof, during the course of such participation, nothing has come
to our attention that leads us to believe that the Registration
Statement, at the time such Registration Statement became effective
and as of the date of the Sales Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of
the Sales Agreement or the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (it being understood that we express no belief with
respect to the financial statements, financial schedules and other
financial or statistical data derived therefrom included or
incorporated by reference in, or excluded from, the Registration
Statement or the Prospectus).
EXHIBIT 23
Permitted Issuer Free Writing Prospectuses
None.
