15,625,000 SHARES OF COMMON STOCK VISTAGEN THERAPEUTICS, INC. UNDERWRITING AGREEMENT
Exhibit 1.1
15,625,000 SHARES OF COMMON STOCK
August
2, 2020
Maxim
Group LLC
As the
Representative of the
Several
underwriters, if any, named in Schedule I hereto
c/o
Maxim Group LLC
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000
Xxxxxxxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
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Ladies
and Gentlemen:
The
undersigned, VistaGen Therapeutics, Inc., a company incorporated
under the laws of Nevada (collectively with its subsidiaries and
affiliates, including, without limitation, all entities disclosed
or described in the Registration Statement as being subsidiaries or
affiliates of VistaGen Therapeutics, Inc., the “Company”), hereby
confirms its agreement (this “Agreement”) with the
several underwriters (such underwriters, including the
Representative (as defined below), the “Underwriters” and each an
“Underwriter”) named in
Schedule I hereto
for which Maxim Group LLC is acting as representative to the
several Underwriters (the “Representative” and if
there are no Underwriters other than the Representative, references
to multiple Underwriters shall be disregarded and the term
Representative as used herein shall have the same meaning as
Underwriter) on the terms and conditions set forth
herein.
It
is understood that the several Underwriters are to make a public
offering of the Public Shares (as defined below) as soon as the
Representative deems it advisable to do so. The Public Shares are
to be initially offered to the public at the initial public
offering price set forth in the Prospectus Supplement (as defined
below).
It
is further understood that you will act as the Representative for
the Underwriters in the offering and sale of the Closing Shares (as
defined below) and, if any, the Option Shares (as defined below) in
accordance with this Agreement.
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the
terms defined elsewhere in this Agreement, for all purposes of this
Agreement, the following terms have the meanings set forth in this
Section 1.1:
“Action” shall have the
meaning ascribed to such term in Section 3.1(l).
“Affiliate” means with
respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such Person as such
terms are used in and construed under Rule 405 under the Securities
Act.
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“Board of Directors” means
the board of directors of the Company.
“Business Day” means any
day other than Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to
remain closed; provided, however, for clarification,
commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of
any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The
City of New York are generally are open for use by customers on
such day.
“Closing” means the
closing of the purchase and sale of the Closing Shares pursuant to
Section 2.1.
“Closing Date” means the
hour and the date on the Trading Day on which all conditions
precedent to (i) the Underwriters’ obligations to pay the
Closing Purchase Price and (ii) the Company’s obligations to
deliver the Closing Shares, in each case, have been satisfied or
waived, but in no event later than 10:00 a.m. (New York City time)
on August 5, 2020, or at such earlier time as shall be agreed upon
by the Representative and the Company.
“Closing Purchase Price”
shall have the meaning ascribed to such term in Section 2.1(b),
which aggregate purchase price shall be net of the underwriting
discounts and commissions.
“Closing
Shares” shall have the meaning ascribed to such term
in Section 2.1(a).
“Commission”
means the United States Securities and Exchange
Commission.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any
other class of securities into which such securities may hereafter
be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would
entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the
holder thereof to receive, Common Stock.
“Company
Auditor” means OUM &
CO. LLP with offices located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000.
.
“Company Counsel” means
Disclosure Law Group, a Professional Corporation, with offices
located at 000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000.
“Effective
Date” shall have the meaning ascribed to such term in
Section 3.1(f).
“EGS” means Ellenoff
Xxxxxxxx & Schole LLP, with offices located at 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
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“Execution Date” shall
mean the date on which the parties execute and enter into this
Agreement.
“Exempt Issuance” means
the issuance of (a) shares of Common Stock or options to employees,
officers or directors of the Company pursuant to any stock or
option plan duly adopted for such purpose by a majority of the
non-employee members of the Board of Directors or a majority of the
members of a committee of non-employee directors established for
such purpose, (b) securities upon the exercise or exchange of or
conversion of any securities exercisable or exchangeable for or
convertible into shares of Common Stock issued and outstanding on
the date of this Agreement, provided that such securities have not
been amended since the date of this Agreement to increase the
number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities or to extend
the term of such securities, and (c) securities issued pursuant to
acquisitions or strategic transactions approved by a majority of
the disinterested directors of the Company, provided that such
securities are issued as “restricted securities” (as
defined in Rule 144) and carry no registration rights that require
or permit the filing of any registration statement in connection
therewith following the Closing Date, and provided that any such
issuance shall only be to a Person (or to the equity holders of a
Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the
business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as
amended.
“FINRA” means the
Financial Industry Regulatory Authority.
“GAAP” shall have the
meaning ascribed to such term in Section 3.1(i).
“Indebtedness” means (a)
any liabilities for borrowed money or amounts owed in excess of
$50,000 (other than accounts payable incurred in the ordinary
course of business), (b) all guaranties, endorsements and other
contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the
Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business; and (c) the present value of any lease payments
in excess of $50,000 due under leases required to be capitalized in
accordance with GAAP.
“Liens” means a lien,
charge, pledge, security interest, encumbrance, right of first
refusal, preemptive right or other restriction.
“Lock-Up Agreements” means
the lock-up agreements that are delivered on the date hereof by
each of the Company’s officers and directors, in form and
substance satisfactory in all respects to the
Representative.
“Material Adverse Effect”
means (i) a material adverse effect on the legality, validity or
enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or
condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole or (iii) a material adverse effect
on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction
Document.
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“Offering” shall have the
meaning ascribed to such term in Section 2.1(c).
“Option Closing Date”
shall have the meaning ascribed to such term in Section
2.2(c).
“Option Closing Purchase
Price” shall have the meaning ascribed to such term in
Section 2.2(b), which aggregate purchase price shall be net of the
underwriting discounts and commissions.
“Option
Shares” shall have the meaning ascribed to such term
in Section 2.2(a).
“Over-Allotment
Option” shall have the meaning ascribed to such term
in Section 2.2.
“Person” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
“Preliminary Prospectus”
means, if any, any preliminary prospectus relating to the Public
Shares included in the Registration Statement or filed with the
Commission pursuant to Rule 424(b).
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an informal investigation or partial
proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the
final prospectus filed for the Registration Statement.
“Prospectus Supplement”
means, if any, any supplement to the Prospectus complying with Rule
424(b) of the Securities Act that is filed with the
Commission.
“Public Shares” means,
collectively, the Closing Shares and, if any, the Option
Shares.
“Registration Statement”
means, collectively, the various parts of the registration
statement prepared by the Company on Form S-3 (File No.
333-234025), as amended, with
respect to the Public Shares, each as amended as of the date
hereof, including the Prospectus and Prospectus Supplement, if any,
the Preliminary Prospectus, if any, and all exhibits filed with or
incorporated by reference into such registration statement, and
includes any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such
term in Section 3.1(e).
“Rule 424” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the Commission
having substantially the same purpose and effect as such
Rule.
“Rule 462(b) Registration
Statement” means any registration statement prepared
by the Company registering additional Public Shares, which was
filed with the Commission on or prior to the date hereof and became
automatically effective pursuant to Rule 462(b) promulgated by the
Commission pursuant to the Securities Act.
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“SEC Reports” shall have
the meaning ascribed to such term in Section 3.1(j).
“Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
“Share Purchase Price”
shall have the meaning ascribed to such term in Section
2.1(b).
“Subsidiary”
means any subsidiary of the Company and shall, where applicable,
also include any direct or indirect subsidiary of the Company
formed or acquired after the date hereof.
“Trading Day” means a day
on which the principal Trading Market is open for
trading.
“Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, the New York Stock Exchange, OTCQX or
OTCQB (or any successors to any of the foregoing).
“Transaction Documents”
means this Agreement, the Lock-Up Agreements, and any other
documents or agreements executed in connection with the
transactions contemplated hereunder.
“Transfer Agent” means
Computershare with offices located at 0000 Xxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000, and any successor transfer agent
of the Company.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
(a) Upon the terms and
subject to the conditions set forth herein, the Company agrees to
sell in the aggregate 15,625,000 shares of Common Stock, and each
Underwriter agrees to purchase, severally and not jointly, at the
Closing, the number of shares of Common Stock (the
“Closing
Shares”) set forth opposite the name of such
Underwriter on Schedule
I hereof;
(b) The aggregate
purchase price for the Closing Shares shall equal the amount set
forth opposite the name of such Underwriter on Schedule I hereto (the
“Closing Purchase
Price”). The purchase price for one Share shall be
$0.80 per Share (the “Share Purchase Price”);
and
(c) On the
Closing Date, each Underwriter shall deliver or cause to be
delivered to the Company, via wire transfer, immediately available
funds equal to such Underwriter’s Closing Purchase Price and
the Company shall deliver to, or as directed by, such Underwriter
its respective Closing Shares and the Company shall deliver the
other items required pursuant to Section 2.3 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set
forth in Sections 2.3 and 2.4, the Closing shall occur at the
offices of EGS or such other location as the Company and
Representative shall mutually agree. The Public Shares are to be
offered initially to the public at the offering price set forth on
the cover page of the Prospectus Supplement (the
“Offering”).
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2.2 Over-Allotment
Option.
(a) For the purposes of
covering any over-allotments in connection with the distribution
and sale of the Closing Shares, the Representative is hereby
granted an option (the “Over-Allotment Option”)
to purchase, in the aggregate, up to 2,343,750 shares of Common Stock (the
“Option
Shares”) at the Share Purchase Price.
(b) In connection with
an exercise of the Over-Allotment Option, the purchase price to be
paid for the Option Shares is equal to the product of the Share
Purchase Price multiplied by the number of Option Shares to be
purchased (the aggregate purchase price to be paid on an Option
Closing Date, the “Option Closing Purchase
Price”).
(c) The Over-Allotment
Option granted pursuant to this Section 2.2 may be exercised by the
Representative as to all (at any time) or any part (from time to
time) of the Option Shares within forty-five (45) days after the
Execution Date. An Underwriter will not be under any obligation to
purchase any Option Shares prior to the exercise of the
Over-Allotment Option by the Representative. The Over-Allotment
Option granted hereby may be exercised by the giving of oral notice
to the Company from the Representative, which must be confirmed in
writing by overnight mail or facsimile or other electronic
transmission setting forth the number of Option Shares to be
purchased and the date and time for delivery of and payment for the
Option Shares (each, an “Option Closing Date”),
which will not be later than two (2) full Business Days after the
date of the notice or such other time as shall be agreed upon by
the Company and the Representative, at the offices of
EGS or at such other
place (including remotely by facsimile or other electronic
transmission) as shall be agreed upon by the Company and the
Representative. If such delivery and payment for the Option Shares
does not occur on the Closing Date, each Option Closing Date will
be as set forth in the notice. Upon exercise of the Over-Allotment
Option, the Company will become obligated to convey to the
Underwriters, and, subject to the terms and conditions set forth
herein, the Underwriters will become obligated to purchase, the
number of Option Shares specified in such notice. The
Representative may cancel the Over-Allotment Option at any time
prior to the expiration of the Over-Allotment Option by written
notice to the Company.
2.3 Deliveries. The Company shall
deliver or cause to be delivered to each Underwriter (if
applicable) the following:
(i) At the Closing
Date, the Closing Shares and, as to each Option Closing Date, if
any, the applicable Option Shares, which shares shall be delivered
via The Depository Trust Company Deposit or Withdrawal at Custodian
system for the accounts of the several Underwriters;
(ii) Contemporaneously
herewith and at the Closing Date, a legal opinion of Company
Counsel addressed to the Underwriters, including, without
limitation, a negative assurance letter, in form and substance
satisfactory in all respects to the Representative, and as to the
Closing Date and as to each Option Closing Date, if any, a
bring-down opinion from Company Counsel in form and substance
reasonably satisfactory to the Representative, and the favorable
opinions of intellectual property legal counsel to the Company,
including, without limitation, a negative assurance letter,
addressed to the Underwriters and in form and substance
satisfactory to the Representative;
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(iii) Contemporaneously
herewith, a cold comfort letter, addressed to the Underwriters and
in form and substance satisfactory in all respects to the
Representative from the Company Auditor dated, respectively, as of
the date of this Agreement and a bring-down letter dated as of the
Closing Date and each Option Closing Date, if any;
(iv) On
the Closing Date and on each Option Closing Date, the duly executed
and delivered Officer’s Certificate, in form and substance
satisfactory in all respects to the Representative;
(v) On the Closing Date
and on each Option Closing Date, the duly executed and delivered
certificate of the Company’s Chief Executive Officer with
respect to certain regulatory matters, in form and substance
satisfactory in all respects to the Representative;
(vi) On
the Closing Date and on each Option Closing Date, the duly executed
and delivered Secretary’s Certificate, in form and substance
satisfactory in all respects to the Representative;
(vii) On
the Closing Date and on each Option Closing Date, the duly executed
and delivered Chief Financial Officer’s Certificate, in form
and substance satisfactory in all respects to the
Representative;
(viii) Contemporaneously
herewith, the duly executed and delivered Lock-Up Agreements;
and
(ix) on
the Closing Date and on each and every Option Closing Date, if any,
a cash fee payable to the Representative, equal to eight and
one-half percent (8.5%) of the aggregate gross proceeds raised in
the Offering.
2.4 Closing Conditions. The
respective obligations of each Underwriter hereunder in connection
with the Closing and each Option Closing Date are subject to the
following conditions being met:
(i) the accuracy in all
material respects when made and on the date in question (other than
representations and warranties of the Company already qualified by
materiality, which shall be true and correct in all respects) of
the representations and warranties of the Company contained herein
(unless as of a specific date therein);
(ii) all
obligations, covenants and agreements of the Company required to be
performed at or prior to the date in question shall have been
performed;
(iii) the
delivery by the Company of the items set forth in Section 2.3 of
this Agreement;
(iv) the
Registration Statement shall be effective on the date of this
Agreement and at each of the Closing Date and each Option Closing
Date, if any, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the
Commission for additional information shall have been complied with
to the reasonable satisfaction of the Representative;
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(v) by the Execution
Date, if required by FINRA, the Underwriters shall have received
clearance from FINRA as to the amount of compensation allowable or
payable to the Underwriters as described in the Registration
Statement;
(vi) the
Closing Shares and the Option Shares have been approved for listing
on the Trading Market; and
(vii) prior
to and on each of the Closing Date and each Option Closing Date, if
any: (i) there shall have been no material adverse change or
development involving a prospective material adverse change in the
condition or prospects or the business activities, financial or
otherwise, of the Company from the latest dates as of which such
condition is set forth in the Registration Statement, the
Prospectus, and the Prospectus Supplement; (ii) no action suit or
proceeding, at law or in equity, shall have been pending or
threatened against the Company or any Affiliate of the Company
before or by any court or federal or state commission, board or
other administrative agency wherein an unfavorable decision, ruling
or finding may materially adversely affect the business,
operations, prospects or financial condition or income of the
Company, except as set forth in the Registration Statement, the
Prospectus, and the Prospectus Supplement; (iii) no stop order shall
have been issued under the Securities Act and no proceedings
therefor shall have been initiated or threatened by the Commission;
(iv) the Company shall not have incurred any material liabilities
or obligations, direct or contingent, nor has it entered into any
material transactions not in the ordinary course of business, other
than pursuant to this Agreement and the transactions referred to
herein; (v) the Company has not paid or declared any dividends or
other distributions of any kind on any class of its capital stock;
(vi) the Company has not altered its method of accounting;
and (vii) the Registration Statement, Prospectus, and the
Prospectus Supplement and any
amendments or supplements thereto shall contain all material
statements which are required to be stated therein in accordance
with the Securities Act and the rules and regulations thereunder
and shall conform in all material respects to the requirements of
the Securities Act and the rules and regulations thereunder, and
none of the Registration Statement, the Prospectus, the Prospectus
Supplement or any amendment or
supplement thereto shall contain any 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 light of
the circumstances under which they were made, not
misleading.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the
Company. Except as set forth in the Disclosure Schedules,
which Disclosure Schedules shall be deemed a part hereof and shall
qualify any representation or otherwise made herein to the extent
of the disclosure contained in the corresponding section of the
Disclosure Schedules, the Company represents and warrants to the
Underwriters as of the Execution Date, as of the Closing Date and
as of each Option Closing Date, if any, as follows:
(a) Subsidiaries. All of the direct
and indirect Subsidiaries of the Company are set forth in the SEC
Reports. The Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and
clear of any Liens, and all of the issued and outstanding shares of
capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. If the Company has no
Subsidiaries, all other references to the Subsidiaries or any of
them in the Transaction Documents shall be
disregarded.
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(b) Organization and Qualification.
The Company and each of the Subsidiaries is an entity duly
incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation
nor default of any of the provisions of its respective certificate
or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have
or reasonably be expected to result in a Material Adverse Effect
and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification.
(c) Authorization; Enforcement. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and each of the other Transaction Documents to which it
is a party and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and each
of the other Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and
thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the
Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with
the Required Approvals. This Agreement and each other Transaction
Document to which the Company is a party has been (or upon delivery
will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and
(iii) insofar as indemnification and contribution provisions may be
limited by applicable law.
(d) No Conflicts. The execution,
delivery and performance by the Company of this Agreement and all
other Transaction Documents to which it is a party, the issuance
and sale of the Public Shares and the consummation by it of the
transactions contemplated hereby and thereby do not and will not
(i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any
rights of termination, amendment, anti-dilution or similar
adjustments, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or
otherwise) or other understanding to which the Company or any
Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) subject to
the Required Approvals, conflict with or result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse
Effect.
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(e) Filings, Consents and
Approvals. The Company is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the
Company of the Transaction Documents, other than: (i) the filing
with the Commission of the Prospectus Supplement and (ii) such
filings as are required to be made under applicable state
securities laws (collectively, the “Required
Approvals”).
(f) Registration Statement. The
Company has filed with the Commission the Registration Statement
under the Securities Act, which became effective on October 7, 2019
(the “Effective
Date”), for the registration under the Securities Act
of the Securities. At the time of such filing, the Company met the
requirements of Form S-3 under the Securities Act. The Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the Securities Act and complies with said Rule and the
Prospectus Supplement will meet the requirements set forth in Rule
424(b). The Company has advised the Representative of all further
information (financial and other) with respect to the Company
required to be set forth therein in the Registration Statement and
Prospectus Supplement. Any reference in this Agreement to the
Registration Statement, the Prospectus or the Prospectus Supplement
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act, on or before the date of this
Agreement, or the issue date of the Prospectus or the Prospectus
Supplement, as the case may be; and any reference in this Agreement
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of
the Prospectus or the Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference. All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included,” “described,”
“referenced,” “set forth” or
“stated” in the Registration Statement, the Prospectus
or the Prospectus Supplement (and all other references of like
import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration
Statement, the Prospectus or the Prospectus Supplement, as the case
may be. No stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or the
Prospectus Supplement has been issued, and no proceeding for any
such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this
Agreement, “free
writing prospectus” has the meaning set forth in Rule
405 under the Securities Act. The Company will not, without the
prior consent of the Representative, prepare, use or refer to, any
free writing prospectus.
(g) Issuance of Shares. The Public
Shares are duly authorized and, when issued and paid for in
accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and non-assessable, free and clear
of all Liens imposed by the Company. The Company has reserved from
its duly authorized capital stock the maximum number of shares of
Common Stock issuable pursuant to this Agreement. The holder of the
Public Shares will not be subject to personal liability by reason
of being such holders. The Public Shares are not and will not be
subject to the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company.
All corporate action required to be taken for the authorization,
issuance and sale of the Public Shares has been duly and validly
taken. The Public Shares conform in all material respects to all
statements with respect thereto contained in the Registration
Statement.
-10-
(h) Intentionally
Omitted.
(i) Capitalization. The
capitalization of the Company is as set forth in the SEC Reports.
The Company has not issued any capital stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option
plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant
to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first
refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the
Transaction Documents. Except as a result of the purchase and sale
of the Public Shares, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any
Person any right to subscribe for or acquire, any shares of Common
Stock, or contracts, commitments, understandings or arrangements by
which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents. The
issuance and sale of the Public Shares will not obligate the
Company to issue shares of Common Stock or other securities to any
Person (other than the Underwriters). There are no outstanding
securities or instruments of the Company or any Subsidiary with any
provision that adjusts the exercise, conversion, exchange or reset
price of such security or instrument upon an issuance of securities
by the Company or any Subsidiary. All of the outstanding shares of
capital stock of the Company are duly authorized, validly issued,
fully paid and non-assessable, have been issued in compliance with
all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. The authorized
shares of the Company conform in all material respects to all
statements relating thereto contained in the Registration
Statement, the Prospectus, and the Prospectus Supplement. The offers and sales of the
Company’s securities were at all relevant times either
registered under the Securities Act and the applicable state
securities or Blue Sky laws or, based in part on the
representations and warranties of the purchasers, exempt from such
registration requirements. No further approval or authorization of
any stockholder, the Board of Directors or others is required for
the issuance and sale of the Public Shares. There are no
stockholders’ agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to
which the Company is a party or, to the knowledge of the Company,
between or among any of the Company’s
stockholders.
-11-
(j) SEC Reports; Financial
Statements. The Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the
Company under the Securities Act and the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company
was required by law or regulation to file such material) (the
foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, together with the Prospectus and
the Prospectus Supplement, being collectively referred to herein as
the “SEC
Reports”) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports
prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act,
as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in
effect at the time of filing. The pro forma financial statements
included in the Registration Statement, the Preliminary Prospectus,
the Prospectus, and the Prospectus Supplement include assumptions that provide
a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included in
the Registration Statement, the Preliminary Prospectus, the
Prospectus, and the Prospectus Supplement. The pro forma financial
statements included in the Registration Statement, the Preliminary
Prospectus the Prospectus, and the Prospectus Supplement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Securities Act and the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of those statements. Such financial statements have
been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments. The agreements and
documents described in the Registration Statement, the Prospectus,
the Prospectus Supplement, and the SEC Reports conform to the
descriptions thereof contained therein and there are no agreements
or other documents required by the Securities Act and the rules and
regulations thereunder to be described in the Registration
Statement, the Prospectus, the Prospectus Supplement, or the SEC
Reports or to be filed with the Commission as exhibits to the
Registration Statement, that have not been so described or filed.
Each agreement or other instrument (however characterized or
described) to which the Company is a party or by which it is or may
be bound or affected and (i) that is referred to in the
Registration Statement, the Prospectus, the Prospectus Supplement,
or the SEC Reports, or (ii) is material to the Company’s
business, has been duly authorized and validly executed by the
Company, is in full force and effect in all material respects and
is enforceable against the Company and, to the Company’s
knowledge, the other parties thereto, in accordance with its terms,
except (x) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (y) as enforceability of
any indemnification or contribution provision may be limited under
the federal and state securities laws, and (z) that the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefore may
be brought. None of such agreements or instruments has been
assigned by the Company, and neither the Company nor, to the best
of the Company’s knowledge, any other party is in default
thereunder and, to the best of the Company’s knowledge, no
event has occurred that, with the lapse of time or the giving of
notice, or both, would constitute a default thereunder. To the best
of the Company’s knowledge, performance by the Company of the
material provisions of such agreements or instruments will not
result in a violation of any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or
court, domestic or foreign, having jurisdiction over the Company or
any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations.
-12-
(k) Material Changes; Undisclosed Events,
Liabilities or Developments. Since the date of the latest
audited financial statements included within the SEC Reports,
except as specifically disclosed in a subsequent SEC Report filed
prior to the date hereof, (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A)
trade payables and accrued expenses incurred in the ordinary course
of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the
Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock, (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option or employee stock
purchase plans and (vi) no officer or director of the Company has
resigned from any position with the Company. The Company does not
have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Public
Shares contemplated by this Agreement, no event, liability, fact,
circumstance, occurrence or development has occurred or exists or
is reasonably expected to occur or exist with respect to the
Company or its Subsidiaries or their respective businesses,
prospects, properties, operations, assets or financial condition
that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made
or deemed made that has not been publicly disclosed at least one
(1) Trading Day prior to the date that this representation is made.
Unless otherwise disclosed in an SEC Report filed prior to the date
hereof, the Company has not: (i) issued any securities or
incurred any liability or obligation, direct or contingent, for
borrowed money; or (ii) declared or paid any dividend or made
any other distribution on or in respect to its capital
stock.
(l) Litigation. There is no action,
suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or
enforceability of this Agreement or any of any of the Transaction
Documents or the Public Shares or (ii) could, if there were an
unfavorable decision, have or reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any Subsidiary,
nor any director or officer thereof, is or has been the subject of
any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary
duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop
order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under
the Exchange Act or the Securities Act.
(m) Labor Relations. No labor
dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company, which could
reasonably be expected to result in a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ employees is a
member of a union that relates to such employee’s
relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the
knowledge of the Company, no executive officer of the Company or
any Subsidiary, is, or is now expected to be, in violation of any
material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition
agreement, or any other contract or agreement or any restrictive
covenant in favor of any third party, and the continued employment
of each such executive officer does not subject the Company or any
of its Subsidiaries to any liability with respect to any of the
foregoing matters. The Company and its Subsidiaries are in
compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms
and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
-13-
(n) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or
in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it
is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived); (ii) is
in violation of any judgment, decree or order of any court,
arbitrator or other governmental authority; or (iii) is or has been
in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material
Adverse Effect.
(o) Regulatory Permits. The Company
and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective
businesses as described in the SEC Reports, except where the
failure to possess such permits could not reasonably be expected to
result in a Material Adverse Effect (each, a “Material Permit”), and
neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any
Material Permit. The disclosures in the Registration Statement
concerning the effects of Federal, State, local and all foreign
regulation on the Company’s business as currently
contemplated are correct in all material respects.
(p) Title to Assets. The Company
and the Subsidiaries have good and marketable title in fee simple
to, or have valid and marketable rights to lease or otherwise use,
all real property and all personal property that is material to the
business of the Company and the Subsidiaries, in each case free and
clear of all Liens, except for (i) Liens that do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and the Subsidiaries and (ii) Liens for the payment of
federal, state or other taxes, for which appropriate reserves have
been made in accordance with GAAP, and the payment of which is
neither delinquent nor subject to penalties. Any real property and
facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with
which the Company and the Subsidiaries are in
compliance.
(q) Intellectual Property. The
Company and the Subsidiaries have, or have rights to use, all
patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective
businesses as described in the SEC Reports and which the failure to
do so could have a Material Adverse Effect (collectively, the
“Intellectual
Property Rights”). None of, and neither the Company
nor any Subsidiary has received a notice (written or otherwise)
that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this
Agreement. Neither the Company nor any Subsidiary has received,
since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise
has any knowledge that the Intellectual Property Rights violate or
infringe upon the rights of any Person. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and
there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have
taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties,
except where failure to do so could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
-14-
(r) Insurance. The Company and the
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which the Company
and the Subsidiaries are engaged, including, but not limited to,
directors and officers insurance coverage. Neither the Company nor
any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant
increase in cost.
(s) Transactions With Affiliates and
Employees. Except as set forth in the SEC Reports, none of
the officers or directors of the Company or any Subsidiary and, to
the knowledge of the Company, none of the employees of the Company
or any Subsidiary is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or
otherwise requiring payments to or from, any officer, director or
such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member
or partner, in each case in excess of $100,000 other than for (i)
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.
(t) Xxxxxxxx-Xxxxx;
Internal Accounting Controls. Except as set forth in the SEC
Reports, the Company and the Subsidiaries are in compliance with
any and all applicable requirements of the Xxxxxxxx-Xxxxx Act of
2002 that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the Commission
thereunder that are effective as of the date hereof and as of the
Closing Date. The Company and the
Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with 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 and the Subsidiaries have
established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the
Subsidiaries and designed such disclosure controls and procedures
to ensure that information required to be disclosed by the Company
in the reports 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. The
Company’s certifying officers have evaluated the
effectiveness of the disclosure controls and procedures of the
Company and the Subsidiaries as of the end of the period covered by
the most recently filed periodic report under the Exchange Act
(such date, the “Evaluation
Date”). The Company
presented in its most recently filed periodic report under the
Exchange Act the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation
Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act)
of the Company and its Subsidiaries that have materially affected,
or is reasonably likely to materially affect, the internal control
over financial reporting of the Company and its
Subsidiaries.
-15-
(u) Certain Fees. Except as set
forth in the Prospectus or the Prospectus Supplement, no brokerage
or finder’s fees or commissions are or will be payable by the
Company, any Subsidiary or Affiliate of the Company to any broker,
financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the
transactions contemplated by the Transaction Documents. To the
Company’s knowledge, there are no other arrangements,
agreements or understandings of the Company or, to the
Company’s knowledge, any of its stockholders that may affect
the Underwriters’ compensation, as determined by FINRA. The
Company has not made any direct or indirect payments (in cash,
securities or otherwise) to: (i) any person, as a
finder’s fee, consulting fee or otherwise, in consideration
of such person raising capital for the Company or introducing to
the Company persons who raised or provided capital to the Company;
(ii) any FINRA member; or (iii) any person or entity
that has any direct or indirect affiliation or association with any
FINRA member, within the twelve months prior to the Execution Date.
None of the net proceeds of the Offering will be paid by the
Company to any participating FINRA member or its affiliates, except
as specifically authorized herein.
(v) Investment Company. The Company
is not, and is not an Affiliate of, and immediately after receipt
of payment for the Public Shares will not be or be an Affiliate of,
an “investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not become an
“investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(w) Registration Rights. No Person
has any right to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of the
Company or any Subsidiary.
(x) Listing and Maintenance
Requirements. The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act, and the Company has taken no
action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock under
the Exchange Act nor has the Company received any notification that
the Commission is contemplating terminating such registration.
Except as set forth in the SEC Reports, the Company has not, in the
12 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. Other
than with respect to the Nasdaq Listing Rule deficiencies described
in the (i) Nasdaq bid price deficiency letter, dated January 31,
2020, and (ii) Nasdaq market value deficiency letter, dated March
30, 2020, the Company is, and 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. The Common Stock is
currently eligible for electronic transfer through the Depository
Trust Company or another established clearing corporation and the
Company is current in payment of the fees of the Depository Trust
Company (or such other established clearing corporation) in
connection with such electronic transfer.
(y) Application of Takeover
Protections. The Company and the Board of Directors have
taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other
similar anti-takeover provision under the Company’s
certificate of incorporation (or similar charter documents) or the
laws of its state of incorporation that is or could become
applicable as a result of the Underwriters and the Company
fulfilling their obligations or exercising their rights under the
Transaction Documents.
-16-
(z) Disclosure; 10b-5. The
Registration Statement (and any further documents to be filed with
the Commission) contains all exhibits and schedules as required by
the Securities Act. Each of the Registration Statement and any
post-effective amendment thereto, if any, at the time it became
effective, complied in all material respects with the Securities
Act and the Exchange Act and the applicable rules and regulations
under the Securities Act and did not and, as amended or
supplemented, if applicable, will not, contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus and the Prospectus Supplement, each as
of its respective date, comply in all material respects with the
Securities Act and the Exchange Act and the applicable rules and
regulations. Each of the Prospectus and the Prospectus Supplement,
as amended or supplemented, did not and will not contain as of the
date thereof any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The SEC Reports, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act and the applicable rules and regulations, and
none of such documents, when they were filed with the Commission,
contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein
(with respect to the SEC Reports incorporated by reference in the
Prospectus or Prospectus Supplement), in light of the circumstances
under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Prospectus
or Prospectus Supplement, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations, as applicable, and will not contain any 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. No
post-effective amendment to the Registration Statement reflecting
any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the
information set forth therein is required to be filed with the
Commission. There are no documents required to be filed with the
Commission in connection with the transaction contemplated hereby
that (x) have not been filed as required pursuant to the Securities
Act or (y) will not be filed within the requisite time period.
There are no contracts or other documents required to be described
in the Prospectus or Prospectus Supplement, or to be filed as
exhibits or schedules to the Registration Statement, which have not
been described or filed as required. The press releases
disseminated by the Company during the twelve months preceding the
date of this Agreement taken as a whole do 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, in light of the circumstances under which they
were made and when made, not misleading.
(aa) No Integrated Offering. Neither
the Company, nor any of its Affiliates, nor any Person acting on
its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security,
under circumstances that would cause this offering of the Public
Shares to be integrated with prior offerings by the Company for
purposes of any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are
listed or designated.
-17-
(bb) Solvency.
Based on the consolidated financial condition of the Company as of
the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Public Shares hereunder, (i)
the fair saleable value of the Company’s assets exceeds the
amount that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the
Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be
conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the
Company, consolidated and projected capital requirements and
capital availability thereof, and (iii) the current cash flow of
the Company, together with the proceeds the Company would receive,
were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all
amounts on or in respect of its liabilities when such amounts are
required to be paid. The Company does not intend to incur debts
beyond its ability to pay such debts as they mature (taking into
account the timing and amounts of cash to be payable on or in
respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or
reorganization laws of any jurisdiction within one (1) year from
the Closing Date. The SEC Reports sets forth as of the date thereof
all outstanding secured and unsecured Indebtedness of the Company
or any Subsidiary, or for which the Company or any Subsidiary has
commitments.
(cc) Tax
Status. Except for matters that would not, individually or
in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i)
has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and
declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due
on such returns, reports and declarations and (iii) has set aside
on its books provision reasonably adequate for the payment of all
material taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim. The provisions for
taxes payable, if any, shown on the financial statements filed with
or as part of the Registration Statement are sufficient for all
accrued and unpaid taxes, whether or not disputed, and for all
periods to and including the dates of such consolidated financial
statements. The term “taxes” mean all federal, state,
local, foreign, and other net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license,
lease, service, service use, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property, windfall
profits, customs, duties or other taxes, fees, assessments, or
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax, or additional amounts with respect
thereto. The term “returns” means all returns,
declarations, reports, statements, and other documents required to
be filed in respect to taxes.
(dd) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary,
nor to the knowledge of the Company or any Subsidiary, any agent or
other person acting on behalf of the Company or any Subsidiary, has
(i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or
employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company or any Subsidiary (or made by any
person acting on its behalf of which the Company is aware) which is
in violation of law, or (iv) violated in any material respect any
provision of FCPA. The Company has taken reasonable steps to ensure
that its accounting controls and procedures are sufficient to cause
the Company to comply in all material respects with the
FCPA.
-18-
(ee) Accountants.
To the knowledge and belief of the Company, the Company Auditor (i)
is an independent registered public accounting firm as required by
the Exchange Act and (ii) shall express its opinion with respect to
the financial statements to be included in the Company’s
Annual Reports for the fiscal years ending March 31, 2019, March
31, 2020 and March 31, 2021. Except as disclosed in the
Company’s Definitive Proxy Statement on Schedule 14A, filed
with the Commission on July 27, 2020, the Company Auditor has not,
during the periods covered by the financial statements included in
the Prospectus and the Prospectus Supplement, provided to the
Company any non-audit services, as such term is used in Section
10A(g) of the Exchange Act. For a period of three (3) years from
the Execution Date, the Company shall continue to retain an
independent registered public accounting firm.
(ff) FDA.
As to each product subject to the jurisdiction of the U.S. Food and
Drug Administration (“FDA”) under the Federal
Food, Drug and Cosmetic Act, as amended, and the regulations
thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the Company or any of its Subsidiaries (each such
product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged,
labeled, tested, distributed, sold and/or marketed by the Company
in compliance with all applicable requirements under FDCA and
similar laws, rules and regulations relating to registration,
investigational use, premarket clearance, licensure, or application
approval, good manufacturing practices, good laboratory practices,
good clinical practices, product listing, quotas, labeling,
advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse
Effect. There is no pending, completed or, to the Company's
knowledge, threatened, action (including any lawsuit, arbitration,
or legal or administrative or regulatory proceeding, charge,
complaint, or investigation) against the Company or any of its
Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from
the FDA or any other governmental entity, which (i) contests the
premarket clearance, licensure, registration, or approval of, the
uses of, the distribution of, the manufacturing or packaging of,
the testing of, the sale of, or the labeling and promotion of any
Pharmaceutical Product, (ii) withdraws its approval of, requests
the recall, suspension, or seizure of, or withdraws or orders the
withdrawal of advertising or sales promotional materials relating
to, any Pharmaceutical Product, (iii) imposes a clinical hold on
any clinical investigation by the Company or any of its
Subsidiaries, (iv) enjoins production at any facility of the
Company or any of its Subsidiaries, (v) enters or proposes to enter
into a consent decree of permanent injunction with the Company or
any of its Subsidiaries, or (vi) otherwise alleges any violation of
any laws, rules or regulations by the Company or any of its
Subsidiaries, and which, either individually or in the aggregate,
would have a Material Adverse Effect. The properties, business and
operations of the Company have been and are being conducted in all
material respects in accordance with all applicable laws, rules and
regulations of the FDA. The Company has not been informed by
the FDA that the FDA will prohibit the marketing, sale, license or
use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being
developed or proposed to be developed by the Company.
(gg) Office
of Foreign Assets Control. Neither the Company nor any
Subsidiary nor, to the Company's knowledge, any director, officer,
agent, employee or affiliate of the Company or any Subsidiary is
currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury
Department.
-19-
(hh) U.S.
Real Property Holding Corporation. The Company is not and
has never been a U.S. real property holding corporation within the
meaning of Section 897 of the Internal Revenue Code of 1986, as
amended, and the Company shall so certify upon the
Representative’s request.
(ii) Bank
Holding Company Act. Neither the Company nor any of its
Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation
by the Board of Governors of the Federal Reserve System (the
“Federal
Reserve”). Neither the Company nor any of its
Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of
any class of voting securities or twenty-five percent (25%) or more
of the total equity of a bank or any entity that is subject to the
BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling
influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal
Reserve.
(jj) Money
Laundering. The operations of the Company and its
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, applicable money laundering statutes and applicable rules
and regulations thereunder (collectively, the “Money Laundering Laws”),
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 or any
Subsidiary, threatened.
(kk) D&O
Questionnaires. To the Company’s knowledge, all
information contained in the questionnaires completed by each of
the Company’s directors and officers immediately prior to the
Offering as well as in the Lock-Up Agreement provided to the
Underwriters is true and correct in all respects and the Company
has not become aware of any information which would cause the
information disclosed in such questionnaires become inaccurate and
incorrect.
-20-
(ll) FINRA
Affiliation. No officer, director or any beneficial owner of
5% or more of the Company’s unregistered securities has any
direct or indirect affiliation or association with any FINRA member
(as determined in accordance with the rules and regulations of
FINRA) that is participating in the Offering. The Company will
advise the Representative and EGS if it learns that any officer,
director or owner of 5% or more of the Company’s outstanding
shares of Common Stock or Common Stock Equivalents is or becomes an
affiliate or associated person of a FINRA member firm. Except for
securities purchased on the open market, no Company Affiliate is an
owner of stock or other securities of any member of FINRA. No
Company Affiliate has made a subordinated loan to any member of
FINRA. No proceeds from the sale of the Public Shares (excluding
underwriting compensation as disclosed in the Registration
Statement, the Prospectus, and the Prospectus Supplement) will be
paid to any FINRA member, any persons associated with a FINRA
member or an affiliate of a FINRA member. Except as disclosed in
the Prospectus and the Prospectus Supplement, the Company has not
issued any warrants or other securities or granted any options,
directly or indirectly, to the Representative or any of the
Underwriters named on Schedule I hereto within the
180-day period prior to the initial filing date of the Prospectus.
Except for securities issued to the Representative, if any, as
disclosed in the Prospectus and the Prospectus Supplement and
securities sold by the Representative on behalf of the Company, no
person to whom securities of the Company have been privately issued
within the 180-day period prior to the initial filing date of the
Prospectus is a FINRA member, is a person associated with a FINRA
member or is an affiliate of a FINRA member. No FINRA member
participating in the Offering has a conflict of interest with the
Company. For this purpose, a “conflict of interest”
exists when a FINRA member, the parent or affiliate of a FINRA
member or any person associated with a FINRA member in the
aggregate beneficially own 5% or more of the Company’s
outstanding subordinated debt or common equity, or 5% or more of
the Company’s preferred equity. “FINRA member
participating in the Offering” includes any associated person
of a FINRA member that is participating in the Offering, any member
of such associated person’s immediate family and any
affiliate of a FINRA member that is participating in the Offering.
“Any person associated with a FINRA member” means (1) a
natural person who is registered or has applied for registration
under the rules of FINRA and (2) a sole proprietor, partner,
officer, director, or branch manager of a FINRA member, or other
natural person occupying a similar status or performing similar
functions, or a natural person engaged in the investment banking or
securities business who is directly or indirectly controlling or
controlled by a FINRA member. When used in this Section 3.1(ll) the
term “affiliate of a FINRA member” or “affiliated
with a FINRA member” means an entity that controls, is
controlled by or is under common control with a FINRA member. The
Company will advise the Representative and EGS if it learns that
any officer, director or owner of 5% or more of the Company’s
outstanding shares of Common Stock or Common Stock Equivalents is
or becomes an affiliate or associated person of a FINRA member
firm.
(mm) Officers’
Certificate. Any certificate signed by any duly authorized
officer of the Company and delivered to the Representative or EGS
shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(nn) Board
of Directors. The Board of Directors is comprised of the
persons set forth under the heading of the Prospectus captioned
“Management.” The qualifications of the persons serving
as board members and the overall composition of the Board of
Directors comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder applicable to the Company and the rules of
the Trading Market. At least one member of the Board of Directors
qualifies as a “financial expert” as such term is
defined under the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder and the rules of the Trading Market. In
addition, at least a majority of the persons serving on the Board
of Directors qualify as “independent” as defined under
the rules of the Trading Market.
-21-
(oo) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance
with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or
wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, as well as all
authorizations, codes, decrees, demands, or demand letters,
injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated
or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required
of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) are in compliance with all terms
and conditions of any such permit, license or approval where in
each clause (i), (ii) and (iii), the failure to so comply could be
reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
(pp) ERISA.
The Company is not a party to an “employee benefit
plan,” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), which: (i) is
subject to any provision of ERISA and (ii) is or was at any time
maintained, administered or contributed to by the Company or any of
its ERISA Affiliates (as defined hereafter). These plans are
referred to collectively herein as the “Employee Plans.” An
“ERISA
Affiliate” of any person or entity means any other
person or entity which, together with that person or entity, could
be treated as a single employer under Section 414(b), (c), (m) or
(o) of the Internal Revenue Code of 1986, as amended (the
“Code”). Each Employee
Plan has been maintained in material compliance with its terms and
the requirements of applicable law. No Employee Plan is subject to
Title IV of ERISA. The Registration Statement, Preliminary
Prospectus, the Prospectus, and the Prospectus Supplement identify each employment,
severance or other similar agreement, arrangement or policy and
each material plan or arrangement required to be disclosed pursuant
to the Rules and Regulations providing for insurance coverage
(including any self-insured arrangements), workers’
compensation, disability benefits, severance benefits, supplemental
unemployment benefits, vacation benefits or retirement benefits, or
deferred compensation, profit-sharing, bonuses, stock options,
stock appreciation rights or other forms of incentive compensation,
or post-retirement insurance, compensation or benefits, which: (i)
is not an Employee Plan; (ii) is entered into, maintained or
contributed to, as the case may be, by the Company or any of its
ERISA Affiliates; and (iii) covers any officer or director or
former officer or director of the Company or any of its ERISA
Affiliates. These agreements, arrangements, policies or plans are
referred to collectively as “Benefit Arrangements.”
Each Benefit Arrangement has been maintained in material compliance
with its terms and with the requirements of applicable law. Except
as disclosed in the Registration Statement, Preliminary Prospectus,
the Prospectus, and the Prospectus Supplement, there is no liability in
respect of post-retirement health and medical benefits for retired
employees of the Company or any of its ERISA Affiliates, other than
medical benefits required to be continued under applicable law. No
“prohibited transaction” (as defined in either Section
406 of ERISA or Section 4975 of the Code) has occurred with respect
to any Employee Plan; and each Employee Plan that is intended to be
qualified under Section 401(a) of the Code is so qualified, and
nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.
-22-
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Amendments to Registration
Statement. The Company has delivered, or will as promptly as
practicable deliver, to the Underwriters complete conformed copies
of the Registration Statement and of each consent and certificate
of experts, as applicable, filed as a part thereof, and conformed
copies of the Registration Statement (without exhibits), the
Prospectus and the Prospectus Supplement, as amended or
supplemented, in such quantities and at such places as an
Underwriter reasonably requests. Neither the Company nor any of its
directors and officers has distributed and none of them will
distribute, prior to the Closing Date, any offering material in
connection with the offering and sale of the Public Shares other
than the Prospectus, the Prospectus Supplement, the Registration
Statement, and copies of the documents incorporated by reference
therein. The Company shall not file any such amendment or
supplement to which the Representative shall reasonably object in
writing.
4.2 Federal Securities
Laws.
(a) Compliance. During the time
when a Prospectus is required to be delivered under the Securities
Act, the Company will use its best efforts to comply with all
requirements imposed upon it by the Securities Act and the rules
and regulations thereunder and the Exchange Act and the rules and
regulations thereunder, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the
Public Shares in accordance with the provisions hereof and the
Prospectus. If at any time when a Prospectus relating to the Public
Shares is required to be delivered under the Securities Act, any
event shall have occurred as a result of which, in the opinion of
counsel for the Company or counsel for the Underwriters, the
Prospectus, as then amended or supplemented, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities Act, the Company will
notify the Underwriters promptly and prepare and file with the
Commission, subject to Section 4.1 hereof, an appropriate amendment
or supplement in accordance with Section 10 of the Securities
Act.
(b) Filing of Final Prospectus
Supplement. The Company will file the Prospectus Supplement
(in form and substance satisfactory to the Representative) with the
Commission pursuant to the requirements of Rule 424.
(c) Exchange Act Registration. For
a period of three (3) years from the Execution Date, the Company
will use its best efforts to maintain the registration of the
Common Stock under the Exchange Act. The Company will not
deregister the Common Stock under the Exchange Act without the
prior written consent of the Representative.
(d) Free Writing Prospectuses. The
Company represents and agrees that it has not made and will not
make any offer relating to the Public Shares that would constitute
an issuer free writing prospectus, as defined in Rule 433 of the
rules and regulations under the Securities Act, without the prior
written consent of the Representative. Any such free writing
prospectus consented to by the Representative is herein referred to
as a “Permitted Free Writing
Prospectus.” The Company represents that it will treat
each Permitted Free Writing Prospectus as an “issuer free
writing prospectus” as defined in rule and regulations under
the Securities Act, and has complied and will comply with the
applicable requirements of Rule 433 of the Securities Act,
including timely Commission filing where required, legending and
record keeping.
-23-
4.3 Delivery to the Underwriters of
Prospectuses. The Company will deliver to the Underwriters,
without charge, from time to time during the period when the
Prospectus is required to be delivered under the Securities Act or
the Exchange Act such number of copies of each Prospectus as the
Underwriters may reasonably request and, as soon as the
Registration Statement or any amendment or supplement thereto
becomes effective, deliver to you two original executed
Registration Statements, including exhibits, and all post-effective
amendments thereto and copies of all exhibits filed therewith or
incorporated therein by reference and all original executed
consents of certified experts.
4.4 Effectiveness and Events Requiring
Notice to the Underwriters. The Company will use its best
efforts to cause the Registration Statement to remain effective
with a current prospectus until nine (9) months from the Execution
Date, and will notify the Underwriters immediately and confirm the
notice in writing: (i) of the effectiveness of the
Registration Statement and any amendment thereto; (ii) of the
issuance by the Commission of any stop order or of the initiation,
or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any state securities commission of
any proceedings for the suspension of the qualification of the
Public Shares for offering or sale in any jurisdiction or of the
initiation, or the threatening, of any proceeding for that purpose;
(iv) of the mailing and delivery to the Commission for filing
of any amendment or supplement to the Registration Statement or
Prospectus; (v) of the receipt of any comments or request for
any additional information from the Commission; and (vi) of
the happening of any event during the period described in this
Section 4.4 that, in the judgment of the Company, makes any
statement of a material fact made in the Registration Statement,
the Prospectus, or the Prospectus Supplement untrue or that requires the
making of any changes in the Registration Statement, the
Prospectus, or the Prospectus Supplement in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. If the Commission or any state securities
commission shall enter a stop order or suspend such qualification
at any time, the Company will make every reasonable effort to
obtain promptly the lifting of such order.
4.5 Review of Financial Statements.
For a period of five (5) years from the Execution Date, the
Company, at its expense, shall cause its regularly engaged
independent registered public accountants to review (but not audit)
the Company’s financial statements for each of the first
three fiscal quarters prior to the announcement of quarterly
financial information.
4.6 Reports to the Underwriters; Expenses
of the Offering.
(a) Periodic Reports, etc. For a
period of three (3) years from the Execution Date, the Company will
furnish or make available to the Underwriters copies of such
financial statements and other periodic and special reports as the
Company from time to time furnishes generally to holders of any
class of its securities and also promptly furnish or make available
to the Underwriters, upon their reasonable request: (i) a copy of
each periodic report the Company shall be required to file with the
Commission; (ii) a copy of every press release and every news item
and article with respect to the Company or its affairs which was
released by the Company; (iii) a copy of each Form 8-K prepared and
filed by the Company; (iv) a copy of each registration statement
filed by the Company under the Securities Act; (v) such additional
documents and information with respect to the Company and the
affairs of any future Subsidiaries of the Company as the
Representative may from time to time reasonably request; provided
that the Underwriters shall each sign, if requested by the Company,
a Regulation FD compliant confidentiality agreement which is
reasonably acceptable to the Representative in connection with such
Underwriter’s receipt of such additional documents and
information. Documents filed with the Commission pursuant to its
XXXXX system shall be deemed to have been delivered to the
Underwriters pursuant to this Section.
-24-
(b) Transfer Sheets. For a period
of three (3) years from the Execution Date, the Company shall
retain the Transfer Agent or a similar transfer and registrar agent
and will furnish to the Underwriters at the Company’s sole
cost and expense such transfer sheets of the Company’s
securities as an Underwriter may reasonably request, including the
daily and monthly consolidated transfer sheets of the Transfer
Agent and the DTC.
(c) Trading Reports. During such
time as the Closing Shares and the Option Shares are listed on the
Trading Market, the Company shall provide to the Underwriters, at
the Company’s expense, such reports published by the Trading
Market relating to price and trading of such shares, as the
Underwriters shall reasonably request.
(d) The Company hereby
agrees to pay on each of the Closing Date and each Option Closing
Date, if any, to the extent not paid at the Closing Date, all
expenses incident to the performance of the obligations of the
Company under this Agreement, including, but not limited to: (a)
all filing fees and communication expenses relating to the
registration of the Public Shares to be sold in the Offering
(including the Option Shares) with the Commission; (b) all FINRA
Public Offering Filing System fees associated with the review of
the Offering by FINRA; all fees and expenses relating to the
listing of such Closing Shares and Option Shares on the Trading
Market and such other stock exchanges as the Company and the
Representative together determine; (c) all fees, expenses and
disbursements relating to the registration or qualification of such
Public Shares under any foreign jurisdictions as the Representative
may reasonably designate; (d) the costs of all mailing and printing
of the underwriting documents (including, without limitation, the
Underwriting Agreement, any Blue Sky Surveys and, if appropriate,
any Agreement Among Underwriters, Selected Dealers’
Agreement, Underwriters’ Questionnaire and Power of
Attorney), Registration Statements, Prospectuses and all
amendments, supplements and exhibits thereto and as many
preliminary and final Prospectuses as the Representative may
reasonably deem necessary; (e) the costs and expenses of the
Company’s public relations firm; (f) the costs of preparing,
printing and delivering the Public Shares; (g) fees and expenses of
the Transfer Agent for the Public Shares (including, without
limitation, any fees required for same-day processing of any
instruction letter delivered by the Company); (h) stock transfer
and/or stamp taxes, if any, payable upon the transfer of securities
from the Company to the Underwriters; (i) the fees and expenses of
the Company’s accountants; (j) the fees and expenses of the
Company’s legal counsel and other agents and representatives;
(k) the Underwriters’ costs of mailing prospectuses to
prospective investors; (l) the costs associated with advertising
the Offering in the national editions of the Wall Street Journal
and New York Times after the Closing Date; (m) $50,000 for the fees
and expenses of EGS; and (n) the
Underwriters’ actual “road show” expenses for the
Offering. The
Underwriters may also deduct from the net proceeds of the Offering
payable to the Company on the Closing Date, or each Option Closing
Date, if any, the expenses set forth herein to be paid by the
Company to the Underwriters.
4.7 Application of Net Proceeds.
The Company will apply the net proceeds from the Offering received
by it in a manner consistent with the application described under
the caption “Use of Proceeds” in the Prospectus and the
Prospectus Supplement.
-25-
4.8 Delivery of Earnings Statements to
Security Holders. The Company will make generally available
to its security holders as soon as practicable, but not later than
the first day of the fifteenth full calendar month following the
Execution Date, an earnings statement (which need not be certified
by independent public or independent certified public accountants
unless required by the Securities Act or the Rules and Regulations
under the Securities Act, but which shall satisfy the provisions of
Rule 158(a) under Section 11(a) of the Securities Act) covering a
period of at least twelve consecutive months beginning after the
Execution Date.
4.9 Stabilization. Neither the
Company, nor, to its knowledge, any of its employees, directors or
shareholders (without the consent of the Representative) has taken
or will take, directly or indirectly, any action designed to or
that has constituted or that might reasonably be expected to cause
or result in, under the Exchange Act, or otherwise, stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Public Shares.
4.10 Internal
Controls. The Company will maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that: (i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with GAAP and to
maintain accountability for assets; (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 existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
4.11 Accountants.
The Company shall continue to retain a qualified independent
certified public accounting firm for a period of at least three (3)
years after the Execution Date. The Underwriters acknowledge that
the Company Auditor is acceptable to the Underwriters.
4.12 FINRA.
The Company shall advise the Underwriters (who shall make an
appropriate filing with FINRA) if it is aware that any 5% or
greater shareholder of the Company becomes an affiliate or
associated person of an Underwriter.
4.13 No
Fiduciary Duties. The Company acknowledges and agrees that
the Underwriters’ responsibility to the Company is solely
contractual and commercial in nature, based on arms-length
negotiations and that neither the Underwriters nor their affiliates
or any selected dealer shall be deemed to be acting in a fiduciary
capacity, or otherwise owes any fiduciary duty to the Company or
any of its affiliates in connection with the Offering and the other
transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the
contrary, the Company acknowledges that the Underwriters may have
financial interests in the success of the Offering that are not
limited to the difference between the price to the public and the
purchase price paid to the Company by the Underwriters for the
shares and the Underwriters have no obligation to disclose, or
account to the Company for, any of such additional financial
interests. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any breach or alleged
breach of fiduciary duty.
4.14 Board
Composition and Board Designations. The Company shall ensure
that: (i) the qualifications of the persons serving as board
members and the overall composition of the Board of Directors
comply with the Xxxxxxxx-Xxxxx Act of 2002 and the rules
promulgated thereunder and with the listing requirements of the
Trading Market and (ii) if applicable, at least one member of
the Board of Directors qualifies as a “financial
expert” as such term is defined under the Xxxxxxxx-Xxxxx Act
of 2002 and the rules promulgated thereunder.
-26-
4.15 Securities
Laws Disclosure; Publicity. At the request of the
Representative, by 9:00 a.m. (New York City time) on the date
hereof, the Company shall issue a press release disclosing the
material terms of the Offering. The Company and the Representative
shall consult with each other in issuing any other press releases
with respect to the Offering, and neither the Company nor any
Underwriter shall issue any such press release nor otherwise make
any such public statement without the prior consent of the Company,
with respect to any press release of such Underwriter, or without
the prior consent of such Underwriter, with respect to any press
release of the Company, which consent shall not unreasonably be
withheld or delayed, except if such disclosure is required by law,
in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication.
The Company will not issue press releases or engage in any other
publicity, without the prior written consent of EGS, for a period
ending at 5:00 p.m. (New York City time) on the first business day
following the fifth (5th) day following the
Closing Date, other than normal and customary releases issued in
the ordinary course of the Company’s business.
4.16 Shareholder
Rights Plan. No claim will be made or enforced by the
Company or, with the consent of the Company, any other Person, that
any Underwriter of the Public Shares is an “Acquiring
Person” under any control share acquisition, business
combination, poison pill (including any distribution under a rights
agreement) or similar anti-takeover plan or arrangement in effect
or hereafter adopted by the Company, or that any Underwriter of
Public Shares could be deemed to trigger the provisions of any such
plan or arrangement, by virtue of receiving Public
Shares.
4.17 Reservation
of Common Stock. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep
available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the
Company to issue Option Shares pursuant to the Over-Allotment
Option.
4.18 Listing
of Common Stock. The Company hereby agrees to use best
efforts to maintain the listing or quotation of the Common Stock on
the Trading Market on which it is currently listed, and
concurrently with the Closing, the Company shall apply to list or
quote all of the Closing Shares and Option Shares on such Trading
Market and promptly secure the listing of all of the Closing Shares
and Option Shares on such Trading Market. The Company further
agrees, if the Company applies to have the Common Stock traded on
any other Trading Market, it will then include in such application
all of the Closing Shares and Option Shares, and will take such
other action as is necessary to cause all of the Closing Shares and
Option Shares to be listed or quoted on such other Trading Market
as promptly as possible. The Company will then take all action
reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all respects
with the Company’s reporting, filing and other obligations
under the bylaws or rules of the Trading Market. The Company agrees
to maintain the eligibility of the Common Stock for electronic
transfer through the Depository Trust Company or another
established clearing corporation, including, without limitation, by
timely payment of fees to the Depository Trust Company or such
other established clearing corporation in connection with such
electronic transfer.
4.19 Subsequent
Equity Sales.
(a) From the date
hereof until the three (3) month anniversary from the later of (i)
the Closing Date, and (ii) the last Option Closing Date (if any),
neither the Company nor any Subsidiary shall issue, enter into any
agreement to issue or announce the issuance or proposed issuance of
any shares of Common Stock or Common Stock
Equivalents.
-27-
(b) From the date
hereof until the four (4) month anniversary from the later of (i)
the Closing Date, and (ii) the last Option Closing Date (if any),
the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its
Subsidiaries of Common Stock or Common Stock Equivalents (or a
combination of units thereof) involving a Variable Rate
Transaction. “Variable Rate
Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the
right to receive, additional shares of Common Stock either (A) at a
conversion price, exercise price or exchange rate or other price
that is based upon, and/or varies with, the trading prices of or
quotations for the shares of Common Stock at any time after the
initial issuance of such debt or equity securities or (B) with a
conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt
or equity security or upon the occurrence of specified or
contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock or (ii) enters into,
or effects a transaction under, any agreement, including, but not
limited to, an equity line of credit, whereby the Company may issue
securities at a future determined price. Any Underwriter shall be
entitled to obtain injunctive relief against the Company to
preclude any such issuance, which remedy shall be in addition to
any right to collect damages.
(c) Notwithstanding the
foregoing, this Section 4.19 shall not apply in respect of an
Exempt Issuance, except that no Variable Rate Transaction shall be
an Exempt Issuance.
4.20 Research
Independence. The Company
acknowledges that each Underwriter’s research analysts and
research departments, if any, are required to be independent from
their respective investment banking divisions and are subject to
certain regulations and internal policies, and that such
Underwriter’s research analysts may hold and make statements
or investment recommendations and/or publish research reports with
respect to the Company and/or the offering that differ from the
views of its investment bankers. The Company hereby waives and
releases, to the fullest extent permitted by law, any claims that
the Company may have against such Underwriter with respect to any
conflict of interest that may arise from the fact that the views
expressed by their independent research analysts and research
departments may be different from or inconsistent with the views or
advice communicated to the Company by such Underwriter’s
investment banking divisions. The Company acknowledges that the
Representative is a full service securities firm and as such from
time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers
and hold long or short position in debt or equity securities of the
Company.
4.21 Capital
Changes. Until 180 days following the later of (i) the
Closing Date, and (ii) the last Option Closing Date (if any), the
Company shall not undertake a reverse or forward stock split or
reclassification of the Common Stock without the prior written
consent of the Representative, which consent will not be
unreasonably withheld.
-28-
ARTICLE
V.
DEFAULT BY UNDERWRITERS
If on
the Closing Date or any Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the
Closing Shares or Option Shares, as the case may be, which such
Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the
Company), the Representative, or if the Representative is the
defaulting Underwriter, the non-defaulting Underwriters, shall use
their reasonable efforts to procure within thirty-six (36) hours
thereafter one or more of the other Underwriters, or any others, to
purchase from the Company such amounts as may be agreed upon and
upon the terms set forth herein, the Closing Shares or Option
Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such thirty-six (36)
hours the Representative shall not have procured such other
Underwriters, or any others, to purchase the Closing Shares or
Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate
number of Closing Shares or Option Shares, as the case may be, with
respect to which such default shall occur does not exceed ten
percent (10%) of the Closing Shares or Option Shares, as the case
may be, covered hereby, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Closing
Shares or Option Shares, as the case may be, which they are
obligated to purchase hereunder, to purchase the Closing Shares or
Option Shares, as the case may be, which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Closing Shares or Option Shares, as the case
may be, with respect to which such default shall occur exceeds ten
percent (10%) of the Closing Shares or Option Shares, as the case
may be, covered hereby, the Company or the Representative will have
the right to terminate this Agreement without liability on the part
of the non-defaulting Underwriters or of the Company except to the
extent provided in Article VI hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Article V,
the applicable Closing Date may be postponed for such period, not
exceeding seven (7) days, as the Representative, or if the
Representative is the defaulting Underwriter, the non-defaulting
Underwriters, may determine in order that the required changes in
the Prospectus or in any other documents or arrangements may be
effected. The term “Underwriter” includes any person
substituted for a defaulting Underwriter. Any action taken under
this Section shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
-29-
ARTICLE VI.
INDEMNIFICATION
6.1 Indemnification of the
Underwriters. Subject to the conditions set forth below, the
Company agrees to indemnify and hold harmless the Underwriters, and
each dealer selected by each Underwriter that participates in the
offer and sale of the Public Shares (each a “Selected Dealer”) and
each of their respective directors, officers and employees and each
Person, if any, who controls such Underwriter or any Selected
Dealer (“Controlling
Person”) within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and
all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all legal or other expenses
reasonably incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim
whatsoever, whether arising out of any action between such
Underwriter and the Company or between such Underwriter and any
third party or otherwise) to which they or any of them may become
subject under the Securities Act, the Exchange Act or any other
statute or at common law or otherwise or under the laws of foreign
countries, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in (i) any
Preliminary Prospectus, if any, the Registration Statement, the
Prospectus (as from time to time each may be amended and
supplemented), or the Prospectus Supplement; (ii) any materials or
information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the
Public Shares, including any “road show” or investor
presentations made to investors by the Company (whether in person
or electronically); or (iii) any application or other document or
written communication (in this Article VI, collectively called
“application”) executed by
the Company or based upon written information furnished by the
Company in any jurisdiction in order to qualify the Public Shares
under the securities laws thereof or filed with the Commission, any
state securities commission or agency, Trading Market or any
securities exchange; or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading, unless such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company with respect to the applicable
Underwriter by or on behalf of such Underwriter expressly for use
in any Preliminary Prospectus, if any, the Registration Statement
or Prospectus, or any amendment or supplement thereto, or in any
application, as the case may be. With respect to any untrue
statement or omission or alleged untrue statement or omission made
in the Preliminary Prospectus, if any, the indemnity agreement
contained in this Section 6.1 shall not inure to the benefit of an
Underwriter to the extent that any loss, liability, claim, damage
or expense of such Underwriter results from the fact that a copy of
the Prospectus was not given or sent to the Person asserting any
such loss, liability, claim or damage at or prior to the written
confirmation of sale of the Public Shares to such Person as
required by the Securities Act and the rules and regulations
thereunder, and if the untrue statement or omission has been
corrected in the Prospectus, unless such failure to deliver the
Prospectus was a result of non-compliance by the Company with its
obligations under this Agreement. The Company agrees promptly to
notify each Underwriter of the commencement of any litigation or
proceedings against the Company or any of its officers, directors
or Controlling Persons in connection with the issue and sale of the
Public Shares or in connection with the Registration Statement, the
Prospectus, or the Prospectus Supplement.
-30-
6.2 Procedure. If any action is
brought against an Underwriter, a Selected Dealer or a Controlling
Person in respect of which indemnity may be sought against the
Company pursuant to Section 6.1, such Underwriter, such Selected
Dealer or Controlling Person, as the case may be, shall promptly
notify the Company in writing of the institution of such action and
the Company shall assume the defense of such action, including the
employment and fees of counsel (subject to the reasonable approval
of such Underwriter or such Selected Dealer, as the case may be)
and payment of actual expenses. Such Underwriter, such Selected
Dealer or Controlling Person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter, such
Selected Dealer or Controlling Person unless (i) the employment of
such counsel at the expense of the Company shall have been
authorized in writing by the Company in connection with the defense
of such action, or (ii) the Company shall not have employed counsel
to have charge of the defense of such action, or (iii) such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different
from or additional to those available to the Company (in which case
the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of
which events the reasonable fees and expenses of not more than one
additional firm of attorneys selected by such Underwriter (in
addition to local counsel), Selected Dealer and/or Controlling
Person shall be borne by the Company. Notwithstanding anything to
the contrary contained herein, if any Underwriter, Selected Dealer
or Controlling Person shall assume the defense of such action as
provided above, the Company shall have the right to approve the
terms of any settlement of such action which approval shall not be
unreasonably withheld.
6.3 Indemnification
of the Company. Each Underwriter severally and not jointly
agrees to indemnify and hold harmless the Company, its directors,
officers and employees and agents who control the Company within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage
and expense described in the foregoing indemnity from the Company
to such Underwriter, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions
made in any Preliminary Prospectus, if any, the Registration
Statement or Prospectus or any amendment or supplement thereto or
in any application, in reliance upon, and in strict conformity
with, written information furnished to the Company with respect to
such Underwriter by or on behalf of such Underwriter expressly for
use in such Preliminary Prospectus, if any, the Registration
Statement or Prospectus or any amendment or supplement thereto or
in any such application. In case any action shall be brought
against the Company or any other Person so indemnified based on any
Preliminary Prospectus, if any, the Registration Statement or
Prospectus or any amendment or supplement thereto or any
application, and in respect of which indemnity may be sought
against such Underwriter, such Underwriter shall have the rights
and duties given to the Company, and the Company and each other
Person so indemnified shall have the rights and duties given to
such Underwriter by the provisions of this Article VI. Notwithstanding the provisions of this Section
6.3, no Underwriter shall be required to indemnify the Company for
any amount in excess of the underwriting discounts and commissions
applicable to the Public Shares purchased by such Underwriter. The Underwriters'
obligations in this Section 6.3 to indemnify the Company are
several in proportion to their respective underwriting obligations
and not joint.
-31-
6.4 Contribution.
(a) Contribution Rights. In order
to provide for just and equitable contribution under the Securities
Act in any case in which (i) any Person entitled to indemnification
under this Article VI makes a claim for indemnification pursuant
hereto but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Article VI provides for
indemnification in such case, or (ii) contribution under the
Securities Act, the Exchange Act or otherwise may be required on
the part of any such Person in circumstances for which
indemnification is provided under this Article VI, then, and in
each such case, the Company and each Underwriter, severally and not
jointly, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and such Underwriter,
as incurred, in such proportions that such Underwriter is
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus
bears to the initial offering price appearing thereon and the
Company is responsible for the balance; provided, that, no Person
guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each director,
officer and employee of such Underwriter or the Company, as
applicable, and each Person, if any, who controls such Underwriter
or the Company, as applicable, within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as
such Underwriter or the Company, as applicable. Notwithstanding the provisions of this Section
6.4, no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to
the Public Shares purchased by
such Underwriter. The Underwriters' obligations in this Section 6.4
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(b) Contribution Procedure. Within
fifteen (15) days after receipt by any party to this Agreement (or
its representative) of notice of the commencement of any action,
suit or proceeding, such party will, if a claim for contribution in
respect thereof is to be made against another party
(“Contributing
Party”), notify the contributing party of the
commencement thereof, but the failure to so notify the Contributing
Party will not relieve it from any liability which it may have to
any other party other than for contribution hereunder. In case any
such action, suit or proceeding is brought against any party, and
such party notifies a Contributing Party or its representative of
the commencement thereof within the aforesaid fifteen (15) days,
the Contributing Party will be entitled to participate therein with
the notifying party and any other Contributing Party similarly
notified. Any such Contributing Party shall not be liable to any
party seeking contribution on account of any settlement of any
claim, action or proceeding affected by such party seeking
contribution without the written consent of such Contributing
Party. The contribution provisions contained in this Section 6.4
are intended to supersede, to the extent permitted by law, any
right to contribution under the Securities Act, the Exchange Act or
otherwise available.
ARTICLE VII.
MISCELLANEOUS
7.1 Termination.
(a) Termination Right. The
Representative shall have the right to terminate this Agreement at
any time prior to any Closing Date, (i) if any domestic or
international event or act or occurrence has materially disrupted,
or in its opinion will in the immediate future materially disrupt,
general securities markets in the United States; or (ii) if
trading on any Trading Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall
have been required by FINRA or by order of the Commission or any
other government authority having jurisdiction, or (iii) if
the United States shall have become involved in a new war or an
increase in major hostilities, or (iv) if a banking moratorium
has been declared by a New York State or federal authority, or
(v) if a moratorium on foreign exchange trading has been
declared which materially adversely impacts the United States
securities markets, or (vi) if the Company shall have
sustained a material loss by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act
which, whether or not such loss shall have been insured, will, in
the Representative’s opinion, make it inadvisable to proceed
with the delivery of the Public Shares, or (vii) if the
Company is in material breach of any of its representations,
warranties or covenants hereunder, or (viii) if the
Representative shall have become aware after the date hereof of
such a material adverse change in the conditions or prospects of
the Company, or such adverse material change in general market
conditions as in the Representative’s judgment would make it
impracticable to proceed with the offering, sale and/or delivery of
the Public Shares or to enforce contracts made by the Underwriters
for the sale of the Public Shares.
(b) Expenses. In the event this
Agreement shall be terminated pursuant to Section 7.1(a), within
the time specified herein or any extensions thereof pursuant to the
terms herein, the Company shall be obligated to pay to the
Representative its actual and accountable out of pocket expenses
related to the transactions contemplated herein then due and
payable, including the fees and disbursements of EGS up to $10,000
(provided,
however, that such
expense cap in no way limits or impairs the indemnification and
contribution provisions of this Agreement).
(c) Indemnification.
Notwithstanding any contrary provision contained in this Agreement,
any election hereunder or any termination of this Agreement, and
whether or not this Agreement is otherwise carried out, the
provisions of Article VI shall not be in any way effected by such
election or termination or failure to carry out the terms of this
Agreement or any part hereof.
7.2 Entire Agreement. The
Transaction Documents, together with the exhibits and schedules
thereto, the Prospectus and the Prospectus Supplement, contain the
entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents,
exhibits and schedules. Notwithstanding anything herein to the
contrary, the Engagement Agreement, dated July 29, 2020, by and
between the Company and the Representative, shall continue to be
effective and the terms therein shall continue to survive and be
enforceable by the Representative in accordance with its terms,
provided that, in the event of a conflict between the terms of the
Engagement Agreement and this Agreement, the terms of this
Agreement shall prevail.
-32-
7.3 Notices. Any and all notices or
other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of: (a) the date of transmission, if
such notice or communication is delivered via facsimile at the
facsimile number or e-mail attachment at the email address set
forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading
Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or e-mail
attachment at the e-mail address as set forth on the signature
pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the
second (2nd) Trading Day
following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by
the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the
signature pages attached hereto.
7.4 Amendments; Waivers. No
provision of this Agreement may be waived, modified, supplemented
or amended except in a written instrument signed, in the case of an
amendment, by the Company and the Representative. No waiver of any
default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any
delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such right.
7.5 Headings. The headings herein
are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
7.6 Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.
7.7 Governing Law. All questions
concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereby irrevocably submits to the 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 herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any action, suit or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. 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 via registered or
certified mail or overnight delivery (with evidence of delivery) 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 other manner permitted by law. If either party shall
commence an action or proceeding to enforce any provisions of the
Transaction Documents, then, in addition to the obligations of the
Company under Article VI, the prevailing party in such action, suit
or proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of
such action or proceeding.
-33-
7.8 Survival. The representations
and warranties contained herein shall survive the Closing and the
Option Closing, if any, and the delivery of the Public
Shares.
7.9 Execution. This Agreement may
be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party
and delivered to each other party, it being understood that the
parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature
page were an original thereof.
7.10 Severability.
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
commercially reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
7.11 Remedies.
In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, the
Underwriters and the Company will be entitled to specific
performance under the Transaction Documents. The parties agree that
monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agree to waive and not to assert
in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
7.12 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be
taken or such right may be exercised on the next succeeding
Business Day.
7.13 Construction.
The parties agree that each of them and/or their respective counsel
have reviewed and had an opportunity to revise the Transaction
Documents and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of the
Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in
any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and
other similar transactions of the Common Stock that occur after the
date of this Agreement.
7.14 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY
JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY,
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY
ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE
FOREVER ANY RIGHT TO TRIAL BY JURY.
(Signature Pages Follow)
-34-
If the
foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very
truly yours,
By:
/s/ Xxxxx X.
XXxxx
Name:
Xxxxx X. Xxxxx
Title:
Chief Executive Officer
Address
for Notice:
000
Xxxxxxxx Xxx.
Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxx, Chief Executive Officer
Email:
xxxxxx@xxxxxxxx.xxx
Copy
to:
Disclosure
Law Group, a Professional Corporation
000
Xxxx Xxxxxxxx
Xxxxx
000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Email:
xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Accepted
on the date first above written.
MAXIM GROUP LLC
As the
Representative of the several Underwriters listed on Schedule
I
By:
/s/ Xxxxxxxx
Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Executive Managing Director & Head of Investment
Banking
Address
for Notice:
|
000
Xxxxxxxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention:
Xxxxx Xxxxxx, General Counsel
|
|
Email:
xxxxxxx@xxxxxxxx.xxx
|
Copy
to:
Ellenoff
Xxxxxxxx & Schole LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
|
Attention:
Xxxxx X. Xxxxxxxx, Esq.
|
|
Email:
xxxxxxxxxx@xxxxxx.xxx
|
-35-
SCHEDULE I
Schedule of Underwriters
|
Underwriters
|
Closing Shares
|
Closing Purchase Price
|
Options Shares
|
Option Share Purchase Price
|
|
Maxim Group LLC
|
15,625,000
|
$12,500,000
|
2,343,750
|
$1,875,000
|
|
Total
|
15,625,000
|
$12,500,000
|
2,343,750
|
$1,875,000
|
-36-
