SECURITIES PURCHASE AGREEMENT
Exhibit 99.1
CONFIDENTIAL
EXECUTION VERSION
This
Securities Purchase Agreement (this “Agreement”)
is dated as of August 13, 2019, between ChromaDex Corporation, a
Delaware corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each,
including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to
the terms and conditions set forth in this Agreement, the Company
desires to issue and sell to each Purchaser, and each Purchaser,
severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement; and
WHEREAS, the
Company and each Purchaser intend to enter into a registration
rights agreement (the “Registration Rights
Agreement”), which
shall provide for, among other things, the terms and conditions
upon which the Shares shall be registered for re-sale under the
Securities Act.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the Company
and each Purchaser agree as follows:
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:
“Acquiring
Person” shall have
the meaning ascribed to such term in Section 4.4.
“Action”
shall have the meaning ascribed to such term in Section
3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed
under Rule 405 under the Securities Act.
“Board of
Directors” means
the board of directors of the Company.
“Business
Day” means any day
except any Saturday, any Sunday, any day which is a public holiday
in the Republic of Singapore or a federal legal holiday in the
United States or any day on which banking institutions in the State
of New York or the Republic of Singapore are authorized or required
by law or other governmental action to close.
“Change of
Control” means the
occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following events: (i) any
“person” (as such term is used in Section
13(d) and 14(d) of the Exchange Act (as defined below)) becomes the
“beneficial
owner” (as defined in
Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company’s then outstanding securities other
than by virtue of a merger, consolidation or similar transaction;
(ii) the consummation of a merger or consolidation of the Company
with or into another entity or any other corporate reorganization
(or similar transaction), if more than fifty percent (50%) of the
combined voting power of the continuing or surviving
entity’s securities
outstanding immediately after such merger, consolidation or other
reorganization (or similar transaction) is owned by persons who
were not stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; or (iii) the
consummation of a sale, transfer or other disposition of all or
substantially all of the Company’s assets.
“Closing”
means the closing of the purchase and sale of the Shares pursuant
to Section 2.1.
“Closing
Date” means the
date on which the Closing is consummated.
“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.
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“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
Counsel” means
Xxxxxx LLP, with offices located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
XX 00000.
“Employee
Plan” means (A) an
employee benefit plan within the meaning of Section 3(3) of ERISA
whether or not subject to ERISA; (B) stock option plans, stock
purchase plans, bonus or incentive award plans, severance pay
plans, programs or arrangements, deferred compensation arrangements
or agreements, employment agreements, executive compensation plans,
programs, agreements or arrangements, change in control plans,
programs or arrangements, supplemental income arrangements,
vacation plans, and all other employee benefit plans, agreements,
and arrangements, not described in (A) above; and (C) plans or
arrangements providing compensation to employee and non-employee
directors, in each case in which the Company or any ERISA Affiliate
sponsors, contributes to, or provides benefits under or through
such plan, or has any obligation to contribute to or provide
benefits under or through such plan, or if such plan provides
benefits to or otherwise covers any current or former employee,
officer or director of the Company or any ERISA Affiliate (or their
spouses, dependents, or beneficiaries).
“Equity
Interest” means
any share, capital stock, partnership, limited liability company,
member or similar equity interest or voting right in any Person,
and any option, warrant, right (including conversion, stock
appreciation, put, call, redemption, repurchase or similar rights),
security (including debt securities), commitment, obligation,
agreement or arrangement that is convertible, exchangeable or
exercisable into or for, or give any Person a right to subscribe
for or acquire, or whose value is linked to or based upon, any such
share, capital stock, partnership, limited liability company,
member or similar equity interest or voting right.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
“ERISA
Affiliate” means
any entity that would have ever been considered a single employer
with the Company under Section 4001(b) of ERISA or part of the same
“controlled
group” as the Company for
purposes of Section 302(d)(3) of ERISA.
“Evaluation
Date” shall have
the meaning ascribed to such term in Section 3.1(r).
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as
amended.
“FDA” shall have the meaning ascribed to
such term in Section 3.1(dd).
“GAAP”
shall have the meaning ascribed to such term in Section
3.1(h).
“Governmental
Authority” shall
mean any federal, state, foreign or local government, or any
political subdivision thereof or any arbitrator, court,
administrative or regulatory agency, commission, department, board,
bureau, body or other government, authority or instrumentality or
any entity or Person exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
“Intellectual Property
Rights” shall have
the meaning ascribed to such term in Section 3.1(o).
“Law” or “law” shall mean any supranational,
national, federal, state, regional, provincial, local or municipal
constitution, treaty, law, statute, ordinance, code, determination,
principle of common law or any other requirement having the effect
of law of any Governmental Authority (including any rule,
regulation, plan, injunction, judgment, order, award, decree,
ruling, requirement, guidance, policy or charge thereunder or
related thereto), in each case as amended as of the date hereof,
whether in the United States or a foreign
jurisdiction.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right
of first refusal, mortgage, claim, easement, right-of-way, option,
title retention agreement, preemptive right or other
restriction.
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“Material Adverse
Effect” shall mean
any change, event, condition, effect, development, state of facts
or occurrence (each, an “Effect”)
that, individually or when taken together with all other Effects,
has had or would be reasonably likely to have (a) a material
adverse effect on the business, condition (financial or other),
assets, liabilities or results of operations of the Company, taken
as a whole, or (b) a material adverse effect on the
Company’s ability to
timely perform its obligations under, or timely consummate any of
the transactions contemplated by, the Agreement (including the sale
of the Shares), in accordance with the terms of this Agreement;
provided, that
for purposes of clause (a) hereof, each of the following Effects
alone, in and of itself, shall not constitute a “Material Adverse Effect: (i) changes
occurring after the date hereof in conditions in the United States
of America or global economy or capital or financial markets
generally, including changes in interest or exchange rates, (ii)
changes occurring after the date hereof in law (or the
interpretation thereof) or changes to U.S. GAAP occurring after the
date hereof that, in each case, generally affect the biotechnology,
biopharmaceutical or nutraceutical industries, (iii) acts of war,
sabotage or terrorism occurring after the date hereof, or any
escalation or worsening of any such acts of war, sabotage or
terrorism, or (iv) earthquakes, hurricanes, floods or other natural
disasters occurring after the date hereof, provided, however, that any Effect
referred to in clauses (i)-(iv) above shall be taken into account
in determining whether a Material Adverse Effect has occurred or
would be reasonably likely to occur only if such Effect has had or
would be reasonably likely to have a disproportionate effect on the
Company or its Subsidiaries, taken as a whole, compared to other
companies in the general industries in which the Company or any of
its Subsidiaries operate.
“Material
Permit” shall have
the meaning ascribed to such term in Section 3.1(m).
“Per Share Purchase
Price” equals
$4.465, 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.
“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.
“Placement
Agent” means
Xxxxxxxxxxx & Co. Inc.
“Private Placement
Engagement Letter”
means that certain engagement letter, dated April 3, 2019, as
amended on May 7, 2019, by and between the Placement Agent and the
Company.
“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.
“Products”
means products and/or services currently or previously researched,
designed, developed, manufactured, performed, licensed, packaged,
labeled, tested, marketed, processed, handled, sold, stored,
distributed, transported, provided and/or otherwise made available
by or on behalf of the Company or its Subsidiaries.
“Purchase
Price” means
$6,999,994.82, which for the avoidance of doubt, represents the
product of (x) the Shares multiplied by
(y) the Per Share Purchase Price.
“Purchaser
Party” shall have
the meaning ascribed to such term in Section 4.6.
“Regulation
FD” means
Regulation FD promulgated by the Commission pursuant to the
Exchange Act, as such Regulation 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 Regulation.
“Required
Approvals” shall
have the meaning ascribed to such term in Section
3.1(e).
“Rule
144” means Rule
144 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
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.
“SEC
Reports” shall
have the meaning ascribed to such term in Section
3.1(h).
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“Securities
Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares”
means 1,567,748 shares of
Common Stock.
“Short
Sales” means all
“short sales” as defined in Rule 200 of
Regulation SHO under the Exchange Act (but shall not be deemed to
include locating and/or borrowing shares of Common
Stock).
“Subscription
Amount” means, as
to each Purchaser, its pro rata share of the Purchase Price, as
specified below such Purchaser’s name on the signature page of this
Agreement and next to the heading “Subscription Amount,” in United States dollars and in
immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth in the SEC
Reports, 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 MKT,
the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq
Global Select Market, the New York Stock Exchange (or any
successors to any of the foregoing).
“Transaction
Documents” means
this Agreement, the Registration Rights Agreement and any other
documents or agreements executed in connection with the
transactions contemplated hereunder.
“Transfer
Agent” means
Computershare, the current transfer agent of the Company, with a
mailing address of 000 Xxxxx 0xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx,
Xxxxxxxx 00000 and any successor transfer agent of the
Company.
ARTICLE II.
PURCHASE
AND SALE; REGISTRATION OF SHARES
2.1 Closing. Upon
satisfaction of the covenants and conditions set forth in Sections
2.2 and 2.3, the Closing shall occur at 10:00 am (New York City
time) on August 15, 2019 at the offices of Company Counsel, or at
such other time and location as the parties shall mutually agree in
writing. At the Closing, upon the terms and subject to the
conditions set forth herein, the Company agrees to sell, and the
Purchasers, severally and not jointly, agree to purchase, the
Shares in exchange for payment by the Purchasers, severally and not
jointly, of an aggregate amount equal to the Purchase Price. Each
Purchaser’s applicable
Subscription Amount as set forth on the signature page hereto
executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its
designee. At the Closing, the Company shall deliver to each
Purchaser its respective pro rata share of the Shares (based on
such Purchaser’s
applicable Subscription Amount relative to the aggregate Purchase
Price), and the Company and each Purchaser shall deliver the other
items set forth in Section 2.2 deliverable at the Closing.
Settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the
Closing Date, the Company shall issue the Shares registered in each
Purchaser’s name and
address and released by the Transfer Agent directly to the
account(s) identified by each Purchaser, and payment therefor shall
be made by each Purchaser (by wire transfer to the Company’s
designated bank account, the details of which are set forth in
Schedule 2.1)). All Shares shall be delivered to the Purchasers
hereunder free and clear of all Liens, other than restrictions on
transferability arising under applicable federal securities
laws.
2.2 Deliveries.
(a)
On or prior to the Closing
Date, the Company shall deliver or cause to be delivered to each
Purchaser the following:
(i) a legal opinion of
Company Counsel, in the form of Exhibit A, dated as of the
Closing Date, executed by such counsel and delivered to the
Purchasers;
(ii) the Company’s wire instructions, on Company
letterhead and executed by the Chief Executive Officer or Chief
Financial Officer;
(iii) a copy of the irrevocable
instructions to the Transfer Agent instructing the Transfer Agent
to deliver to such Purchaser, on an expedited basis, a certificate
evidencing the number of such Purchaser’s Shares registered in the name of
such Purchaser;
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(iv) the Registration Rights Agreement,
in the form of Exhibit
B, executed by a duly authorized officer of the
Company;
(v) a certificate, signed by a
duly elected officer of the Company, certifying as of the Closing
Date as to the satisfaction of each of the conditions set forth in
Section 2.3(b)(i), (ii) and (iv);
(vi) a
certificate evidencing the formation and good standing of the
Company issued by the Secretary of State of the State of Delaware,
as of a date within ten (10) days of the Closing Date;
(vii) a
copy of the Company’s Certificate of Incorporation, as
amended, certified by the Secretary of State of the State of
Delaware within thirty (30) days of the Closing Date;
(viii)
a certificate executed by the Secretary of the Company and dated as
of the Closing Date, certifying as to (i) the resolutions adopted
by the Company’s board of directors approving this Agreement,
(ii) the Certificate of Incorporation of the Company and (iii) the
Company’s bylaws, as amended, each as in effect at the
Closing; and
(ix) a
letter from the Company’s Transfer Agent certifying the
number of shares of Common Stock outstanding as of a date within
five (5) days of the Closing Date.
(b)
On or prior to the Closing
Date, each Purchaser shall deliver or cause to be delivered to the
Company:
(i)
such Purchaser’s
Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its
designee; and
(ii) the
Registration Rights Agreement, in the form of Exhibit B, executed by a duly
authorized officer of the Purchaser.
2.3 Closing
Conditions.
(a)
The obligations of the Company
hereunder in connection with the Closing are subject to the
following conditions being met:
(i) the
truth and accuracy in all material respects (or, to the extent
representations or warranties are qualified by materiality or
Material Adverse Effect, in all respects) on the Closing Date of
the representations and warranties of the Purchasers contained
herein (unless as of a specific date therein in which case they
shall be accurate in all material respects as of such
date);
(ii)
all obligations, covenants
and agreements of each Purchaser required to be performed,
satisfied or complied with at or prior to the Closing Date shall
have been performed, satisfied and complied with in all material
respects; and
(iii)
the delivery by each Purchaser
of the items set forth in Section 2.2(b) of this
Agreement.
(b)
The respective obligations of
the Purchasers hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the truth and accuracy in all
material respects (or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all
respects) on the Closing Date of the representations and warranties
of the Company contained herein (unless as of a specific date
therein in which case they shall be accurate as of such
date);
(ii) all obligations, covenants
and agreements of the Company required to be performed, satisfied
or complied with at or prior to the Closing Date shall have been
performed, satisfied and complied with in all material
respects;
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(iii) the delivery by the Company of the
items set forth in Section 2.2(a) of this Agreement;
(iv) there shall have been no Material
Adverse Effect with respect to the Company since the date
hereof;
(v) from the date hereof to the
Closing Date, trading in the Common Stock shall not have been
suspended by the Commission or the Company’s principal Trading Market (nor
shall such suspension have been threatened), and, at any time prior
to the Closing Date, trading in securities generally as reported by
Bloomberg L.P. shall not have been suspended or limited, or minimum
prices shall not have been established on securities whose trades
are reported by such service, or on any Trading Market, nor shall a
banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any
material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each
case, in the reasonable judgment of such Purchaser, makes it
impracticable or inadvisable to purchase the Shares at the
Closing;
(vi) all authorizations, approvals, or
permits, if any, of any governmental authority or regulatory body
of the United States or of any state in the United States that are
binding upon the Company and that are required in connection with
the lawful sale and issuance of the Shares at the Closing pursuant
to this Agreement shall have been duly obtained and shall be
effective on and as of the date of the Closing, and no stop order
or other order enjoining the sale of the Shares shall have been
issued and no proceedings for such purpose shall be pending or, to
the knowledge of the Company, threatened by the Commission, or any
commissioner of corporations or similar officer of any state in the
United States having jurisdiction over this transaction;
and
(vii)
the sale and issuance of the
Shares shall be legally permitted by all laws and regulations to
which Purchasers and the Company are subject.
ARTICLE III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the
Disclosure Schedule to this Agreement (the “Disclosure
Schedule”), which
Disclosure Schedule shall be deemed a part hereof and shall qualify
any representation or warranty otherwise made herein to the extent
of the disclosure contained in the corresponding section of the
Disclosure Schedule, the Company hereby makes the following
representations and warranties to each Purchaser and to the
Placement Agent, solely in its capacity as placement agent of the
Shares pursuant to the Private Placement Engagement Letter, in each
case, as of the date hereof and as of the Closing Date (except for
the representations and warranties that speak as of a specific
date, which shall be made as of such date):
(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 issued and outstanding 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 or other
Equity Interests of each Subsidiary are validly issued and are
fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase Equity Interests of each
Subsidiary.
(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 all requisite power and
authority to own, lease, operate and use its properties and assets
and to carry on its business as currently conducted and as it is
presently proposed to be 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, in
the case of any Subsidiary, where the failure to be so qualified or
in good standing, as the case may be, has not had and would not
reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect and no Proceeding has been
instituted, is pending, or, to the Company’s knowledge, has been threatened in
any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or
qualification.
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(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 (including the issuance and sale of the Shares
by the Company) 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 the Required Approvals. This
Agreement and each other Transaction Document to which it 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 and (ii) 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 the other Transaction Documents to which it is a
party, the issuance and sale of the Shares and the consummation by
it of the transactions contemplated hereby and thereby do not and
will not conflict with, violate, result in a breach of or
constitute (upon notice or lapse of time or both) a default under,
or result in the creation or imposition of any Lien upon any
properties or assets of the Company or any Subsidiary or give to
others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) under
any (i) certificate or articles of incorporation, bylaws or other
organizational or charter documents of the Company or any of its
Subsidiaries, or (ii) 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
Company’s receipt or
filing, as applicable, of the Required Approvals, any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority in the United
States to which the Company or a Subsidiary is subject (including
federal and state securities laws and regulations and the rules and
regulations of any self regulatory organization to which the
Company or its securities are subject, including all Trading
Markets), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of clause (ii),
as has not had and would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse
Effect.
(e)
Filings,
Consents and Approvals. The Company is not required to
obtain any consent, waiver, approval, 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 the United States in connection with
the execution, delivery and performance by the Company of the
Transaction Documents (including the offer, sale or issuance of the
Shares by the Company), other than those filings that are set forth
on Schedule 3.1(e)
of the Disclosure Schedule (collectively, the “Required
Approvals”). The
Required Approvals will be timely filed by the Company within the
applicable periods therefor.
(f)
Issuance
of Shares. The 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
nonassessable, free and clear of all Liens, other than restrictions
on transferability under applicable federal securities laws. Each
holder of the Shares will not be subject to personal liability by
reason of being such a holder. The Shares are not and will not be
subject to any preemptive rights held by any holders of any
security of the Company or any similar contractual rights granted
by the Company to any Person. All corporate action required to be
taken for the authorization, issuance and sale of the Shares has
been duly and validly taken. The Shares shall be issued by the
Company in compliance with all federal and state securities
laws.
(g)
Capitalization.
(i) As of the close of business on the
date immediately prior to the date of this Agreement (the
“Capitalization
Date”), the
authorized capital stock of the Company consists of 150,000,000
shares of Common Stock, of which 55,730,918 such shares of Common
Stock are issued and outstanding (the “Outstanding Common
Stock”).
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(ii)
As of the close of business on
the Capitalization Date, except as set forth on Schedule
3.1(g)(ii) of the Disclosure Schedule, there are no Equity
Interests of the Company issued and outstanding or subject to
issuance. Schedule 3(g)(ii) of the Disclosure Schedules sets forth
(x) a list of all stock options granted, awarded or otherwise
outstanding as of the Capitalization Date (including, among other
things, the name of grantee, number and type of Equity Interests
subject to the option, exercise price, xxxxx xxxxx, market price on
grant date, vesting schedule and grant date for each such listed
stock option) (collectively, the “Outstanding Company
Options”), (y) a
list of all restricted stock grants which are outstanding as of the
Capitalization Date (including the name of grantee, number and type
of Equity Interests granted, purchase price per share and grant
date for each such listed restricted stock grant) (collectively,
the “Outstanding Company
RSAs”) and (z) a
list of all warrants to purchase capital stock of the Company which
are outstanding as of the Capitalization Date (including the name
of the holder of, exercise price for, expiration date of and number
and type of Equity Interests issuable under each such listed
warrant) (collectively, the “Outstanding Company
Warrants”).
(iii)
The Company has not issued any
Equity Interests since its most recently filed periodic or current
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
other Equity Interests 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 for
the Outstanding Company Options, the Outstanding Company RSAs, the
Outstanding Company Warrants and as a result of the purchase and
sale of the 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 other Equity Interests, 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 other Equity Interests. Except with respect to the
Outstanding Company Options and the Outstanding Company RSAs and
the related award agreements to which the Company is a party, there
are no obligations (whether outstanding or authorized) of the
Company or any Company Subsidiary requiring the repurchase of any
Equity Interests of the Company. The issuance and sale of the
Shares will not obligate the Company to issue shares of Common
Stock or other Equity Interests to any Person (other than the
Purchasers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset
price under any of such Equity Interests. All of the outstanding
Equity Interests of the Company are duly authorized, validly
issued, fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, and none of
such outstanding Equity Interests was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
Equity Interests. The offers and sales of the Company’s Equity Interests 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 applicable purchasers,
exempt from such registration requirements. No further approval or
authorization of any stockholder or the Board of Directors is
required for the issuance and sale of the Shares pursuant to the
Transaction Documents. Except as listed on Schedule 3.1(g)(iii),
there are no stockholders agreements, voting agreements or other
similar agreements with respect to the Company’s Equity Interests to which the
Company is a party or, to the knowledge of the Company, between or
among any of the Company’s holders of Equity
Interests.
(h)
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, 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. 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
-8-
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 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 SEC Reports that have
not been so 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 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. Except as described
in the SEC Reports, 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. Performance by the Company 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.
(i)
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, (i) there has been no event, occurrence or development that
has had or that could reasonably be expected to, either
individually or in the aggregate, 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 or the manner in which it keeps its accounting books
and records other than as required by GAAP, (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 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 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 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.
(j)
Litigation.
Since January 1, 2013, except as disclosed in the SEC Reports,
there is no claim, complaint, action, arbitration, charge, hearing,
inquiry, litigation, suit, inquiry, notice of violation, audit,
examination, investigation or any other proceeding or any
settlement, judgment, order, award, injunction or decree pending or
other proceeding (whether civil, criminal, administrative,
investigative or informal), including, without limitation, an
informal investigation or partial proceeding, such as a deposition,
whether commenced or threatened, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any
of their respective properties, at Law or in equity, before or by
any Governmental Authority, or brought by any third party
(collectively, an “Action”) which: (i) adversely affects or
challenges the legality, validity or enforceability of any of the
Transaction Documents or the Shares or (ii) could have or
reasonably be expected to result in a Material Adverse Effect. Nor
to the Company’s
knowledge does there exist any basis for any such Action. Since
January 1, 2013, except as disclosed in the SEC Reports, neither
the Company nor any Subsidiary, and, to the knowledge of the
Company, no 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, to the knowledge of the
Company, 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.
-9-
(k)
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. 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 material 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.
(l)
Compliance. The
Company is and has been since January 1, 2013, in compliance with
all Laws of any Governmental Authority applicable to its
businesses, Products or operations, except in each case as could
not have or reasonably be expected to have a material and adverse
impact on the Company and its Subsidiaries, taken as a whole. Since
January 1, 2013, except as set forth in the SEC Reports, neither
the Company nor any Subsidiary: (i) is in default under or in
violation of (and, to the knowledge of the Company, 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 or has been 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
applicable Law of any Governmental Authority, including, without
limitation, all Laws relating to taxes, environmental protection,
occupational health and safety, product development, manufacturing,
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.
(m)
Regulatory
Permits. Since January 1, 2013, the Company and the
Subsidiaries have possessed all certificates, approvals,
agreements, licenses, registrations, exemptions, clearances,
authorizations and permits issued by the appropriate Governmental
Authorities necessary to conduct their respective businesses as
described in the SEC Reports, including, without limitation, those
relating to the Products of the Company or the Subsidiaries, except
where the failure to possess such certificates, approvals,
agreements, licenses, registrations, exemptions, clearances,
authorizations and permits, individually or in the aggregate, 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, nor
to the knowledge of the Company does there exist any basis for, the
revocation or modification of any Material Permit. The disclosures
in the SEC Reports concerning the effects of federal, state, local
and all foreign regulation on the Company’s business as currently contemplated
are correct.
(n)
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 as do not materially affect the value of such
property and do not 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 in all material
respects.
-10-
(o)
Intellectual
Property.
(i) The Company and the
Subsidiaries have, or have rights to (A) use, all patents and
patent applications (collectively, “Patents”);
trademarks, trademark applications, service marks, logos, packaging
designs, Internet domain names and trade names (collectively,
“Marks”);
know-how and trade secrets including without limitation any
inventions (whether or not patentable) (collectively, “Trade Secrets”), 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 (“Business”)
and (B) to sell all Products, 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 three (3) 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. All
Intellectual Property Rights owned by or exclusively licensed to
the Company or the Subsidiaries that have been issued by, or
registered with, or the subject of an application filed with, as
applicable, the U.S. Patent and Trademark Office, the U.S.
Copyright Office or any similar office or agency anywhere in the
world are currently in material compliance with formal legal
requirements (including without limitation, as applicable, payment
of filing, assignment recordations, examination and maintenance
fees, inventor declarations, proofs of working or use, timely
post-registration filing of affidavits of use and incontestability,
and renewal applications). To the knowledge of the Company, all
such Intellectual Property Rights are valid and 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.
(ii) No Patent has been or is now
involved in any reissue, re-examination, inter-partes review,
post-grant review, or opposition proceeding; all products made,
used or sold under the Patents have been marked with the proper
patent notice.
(iii) There are no pending or, to the
knowledge of the Company, threatened claims against the Company
alleging that any of the operation of the Business or any activity
by the Company, or manufacture, sale, offer for sale, importation,
and/or use of any Product infringes or violates (or in the past
infringed or violated) the rights of others (“Third Party IP
Assets”) or
constitutes a misappropriation of (or in the past constituted a
misappropriation of) any subject matter of any Third Party IP
Assets or that any of the Intellectual Property Rights are invalid
or unenforceable.
(iv) Neither the operation of the
Business, nor any activity by the Company, nor manufacture, use,
importation, offer for sale and/or sale of any Product, to the
knowledge of the Company, infringes or violates (or in the past
infringed or violated) any Third Party IP Asset or constitutes a
misappropriation of (or in the past constituted a misappropriation
of) any subject matter of any Third Party IP Asset.
(v) The Company owns all rights
in or to all inventions, improvements, ideas, discoveries,
writings, works of authorship, other intellectual property, and
information relating to the Business that have been created or
developed by each employee, consultant or contractor of the Company
or the Subsidiaries within the scope of employment or engagement,
as applicable, and all Intellectual Property Rights related
thereto; in each case where a Patent is held by the Company or the
Subsidiaries by assignment, the assignment has been duly recorded
with the U.S. Patent and Trademark Office and all similar offices
and agencies anywhere in the world in which foreign counterparts
are registered or issued.
(vi) Schedule 3.1(o)(vi) contains a
complete and accurate list of all Patents owned by the Company and
the Subsidiaries or used or held for use by the Company or the
Subsidiaries in the Business, registered and material unregistered
Marks owned by the Company or the Subsidiaries or used or held for
use by the Company or the Subsidiaries in the Business and
registered and material unregistered copyrights owned by the
Company or the Subsidiaries or used or held for use by the Company
or the Subsidiaries in the Business.
-11-
(p)
Insurance. The
Company and the Subsidiaries are insured by insurers of
nationally-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 received any
notice of cancellation of any such insurance, nor, to the
Company’s knowledge, will
it or any Subsidiary be unable to renew their respective 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.
(q)
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 $120,000 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.
(r)
Xxxxxxxx-Xxxxx;
Internal Accounting Controls. The Company and the
Subsidiaries are in compliance in all material respects 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 rules and
regulations applicable to them 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 and liability
accountability, (iii) access to assets or incurrence of liabilities
is permitted only in accordance with management’s general or specific authorization,
and (iv) the recorded accountability for assets and liabilities is
compared with the existing assets and liabilities 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 provide
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.
(s)
No General
Solicitation; Certain Fees.
Neither the Company, nor any of its Affiliates, nor any Person
acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer
or sale of the Shares. The Company is responsible for the payment
of any Placement Agent’s fees relating to or arising out of
the issuance of the Shares pursuant to this Agreement. Except for
amounts payable by the Company to the Placement Agent, 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. Except for amounts payable by the Company to
the Placement Agent, 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.
-12-
(t)
Investment
Company. The Company is not, and is not an Affiliate of, and
immediately after receipt of payment for the 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.
Notwithstanding the foregoing, for purposes of this Section 3.1(t),
“Affiliates” does not include the purchasers as named
in that certain Securities Purchase Agreement, dated April 26,
2017, by and among the Company and the certain purchasers named
therein (the “Previous Purchasers”) or Persons who are
Affiliates of the Company solely because they are holders of the
Company’s securities.
(u)
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, except as set
forth in the Registration Rights Agreement.
(v)
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. The Company has not, in the three years 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. 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 issuance by the Company of the Shares shall not
have the effect of delisting or suspending the Common Stock from
any Trading Market.
(w) 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 Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction
Documents, including without limitation as a result of the
Company’s issuance of the
Shares and the Purchasers’ ownership of the
Shares.
(x)
Disclosure. 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, in light of the
circumstances under which they were made not misleading. 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. 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. The Company acknowledges
and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby
other than those set forth in the Transaction
Documents.
(y)
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: (i) eliminate the availability of the exemption from
registration under Regulation D under the Securities Act in
connection with the offer and sale by the Company of the Shares as
contemplated hereby or (ii) cause this offering of the Shares
pursuant to the Transaction Documents to be integrated with prior
offerings by the Company for purposes of any applicable law,
regulation or stockholder approval provisions, including, without
limitation, under the rules and regulations of any Trading Market
on which any of the securities of the Company are listed or
designated.
-13-
(z)
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 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
year from the Closing Date. The SEC Reports sets forth as of the
date hereof all outstanding secured and unsecured indebtedness of
the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments.
(aa)
Tax
Status. Except as set forth on Schedule 3.1(aa) of the
Disclosure Schedule, (i) the Company and its Subsidiaries each has
timely and properly filed all United States federal, state, local
and foreign Tax returns, Tax reports, information returns,
declarations of estimated Tax and other declarations and statements
with respect to Taxes (collectively, the “Tax
Returns”) required
to be filed by it, (ii) such Tax Returns are true, correct and
complete in all material respects and the Company and its
Subsidiaries each have paid all Taxes and other governmental
assessments and charges that are material in amount and required to
be paid (whether disputed or not) by it, whether or not shown on
the Tax Returns to be due, 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 Tax Returns
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 the SEC Reports 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. Neither the Company nor any
Subsidiary of the Company is a party to any claim, dispute, audit,
pending action or proceeding, nor is any such claim, dispute,
action or proceeding threatened by any Taxing authority, for the
assessment or collection of any Taxes and no claim for the
assessment or collection of any Taxes has been asserted against the
Company or any Subsidiary that has not been settled with all
amounts due having been paid. Neither the Company nor any
Subsidiary of the Company has been notified that either the
Internal Revenue Service or any other Taxing authority has raised
any issues, or notified the Company or a Subsidiary of an intent to
raise such issues, in connection with any Tax Return of the
Company. No Lien with respect to Taxes has been filed and no
deficiency or addition to Taxes, interest or penalties for any
Taxes with respect to any income, properties or operations of the
Company or any Subsidiary of the Company has been proposed,
asserted or assessed against the Company or any Subsidiary of the
Company. The Company has never been a “United States real property holding
corporation” as defined
in Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended (the “Code”)
and Section 1.897-2(b) of
the Treasury Regulations promulgated thereunder. The Company and
each of its Subsidiaries has complied in all material respects with
all applicable Laws relating to the payment and withholding of
Taxes, including sales and use Taxes, and has withheld and paid
over all amounts required by Law to be withheld and paid from the
wages or salaries of employees, and neither the Company nor any of
its Subsidiaries is liable for any Taxes for failure to comply with
such Laws. No claim, or notice of claim, has ever been made by an
authority in a jurisdiction where the Company or a Subsidiary of
the Company does not file Tax Returns that the Company or a
Subsidiary is or may be subject to taxation by that jurisdiction.
Neither the Company nor any Subsidiary of the Company has been a
member of an affiliated group of corporations within the meaning of
Section 1504(a) of the
Code filing a combined federal income Tax return nor does the
Company or any Subsidiary of the Company have any liability for
Taxes of any other Person under Treasury Regulations § 1.1502-6 (or any similar
provision of foreign, state or local Law) or otherwise, other than
the consolidated group of which the Company is currently the parent
corporation. Neither the
Company nor any Subsidiary of the Company is a party to any Tax
allocation, indemnity or sharing arrangement. Neither the Company
nor any Subsidiary of the Company has engaged in any transaction
that could give rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and Treasury
Regulations promulgated thereunder. Neither the Company nor any
Subsidiary of the Company will be required to include any item of
income in, or exclude any item of deduction from, taxable income
for any taxable period (or portion thereof) ending after the
Closing Date as a result of any: (i) change in method of accounting
for a taxable period ending on or prior to the Closing Date; (ii)
use of an improper method of accounting for a taxable period ending
on or prior to the Closing Date; (iii) “closing agreement” as described in Section 7121 of the
Code (or any corresponding or similar provision of U.S. state,
local or non-U.S. income Tax law) executed on or prior to the
Closing Date; (iv) intercompany transactions
-14-
or any
excess loss account described in Treasury Regulations under Section
1502 of the Code (or any corresponding or similar provision of U.S.
state, local or non-U.S. income Tax law); (v) installment sale or
open transaction disposition made on or prior to the Closing Date;
(vi) prepaid amount received on or prior to the Closing Date; (vii)
election made under Section 108(i) of the Code prior to the
Closing; (viii) the application of Section 952(c)(2) of the Code;
(ix) application of Section 951 of the Code with respect to income
earned or recognized or payments received prior to the Closing; or
(x) any similar election, action, or agreement that would have the
effect of deferring any liability for Taxes of the Company or any
of its Subsidiaries from any period ending on or before the Closing
Date to any period ending after such date. The Company has not
distributed stock of another entity, and has not had its stock
distributed by another entity, in a transaction that was purported
or intended to be governed in whole or in part by
Section 355 or 361 of the
Code. The term “Taxes”
means (A) 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, alternative or
add-on minimum taxes, customs, unclaimed property or escheat,
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 and
(B) any liability for the
payment of any amount of the type described in the immediately
preceding clause (A) as a
result of (1) being a
“transferee” (within the meaning of
Section 6901 of the Code
or any other applicable law) of another Person, (2) being a member of an affiliated,
combined, consolidated or unitary group or (3) any contractual
liability.
(bb)
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.
(cc)
Accountants.
Xxxxxx LLP (the “Company
Auditor”) (i) is
an independent registered public accounting firm as required by the
Exchange Act and (ii) to the knowledge of the Company, shall
express its opinion with respect to the financial statements to be
included in the Company’s
Annual Report for the fiscal year ending December 31, 2019. The
Company Auditor has not, during the previous three (3) years,
provided to the Company any non-audit services, as such term is
used in Section 10A(g) of the Exchange Act.
(dd)
Regulatory
Matters.
(i) Since January 1, 2013, each
Product of the Company or the Subsidiaries has been in all material
respects: (i) formulated, developed, designed, licensed,
manufactured, tested, processed, handled, stored, labeled,
packaged, transported, marketed and advertised in compliance with
all applicable Laws and requirements, including, but not limited
to, the statutes and regulations enforced by the U.S. Food and Drug
Administration (“FDA”) and the Federal Trade Commission
(“FTC”) and (ii) in compliance with all
applicable 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.
(ii) Since January 1, 2013, there
have been no product holds, stop sales, or other corrective action
taken by the Company or its Subsidiaries (or their agents) or
requested or ordered or any adverse action taken by any
Governmental Authority relating to the Company, its Subsidiaries,
or their respective Products, and the Company or its Subsidiaries
have not initiated or participated in a recall, market withdrawal,
safety alert, dear health care professional letter or other
corrective action.
-15-
(iii) Since January 1, 2013, there has
been no pending, completed or, to the Company's knowledge,
threatened, claim, charge, complaint, or Action 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, FTC, or any other Governmental
Authority, which: (i) contests the premarket clearance, licensure,
registration, or approval, use, development, distribution,
manufacture, packaging, testing, processing, handling, sale,
labeling and/or promotion of any 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 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.
(iv) Since January 1, 2013, the
properties, business and operations of the Company and its
Subsidiaries have been and are being conducted in all material
respects in accordance with all applicable Laws, rules and
regulations of the FDA or other Governmental Authority. The Company
has not been informed by the FDA that the FDA will prohibit the
development, marketing, sale, license or use in the United States
of any product proposed to be developed, produced or marketed by or
on behalf of the Company or its Subsidiaries, nor has the FDA
expressed any concern as to approving or clearing for marketing any
product or product claim being, or proposed to be, developed or
used by the Company. All Products claiming to be or containing a
New Dietary Ingredient (NDI) or having an ingredient that is
claimed to be Generally Recognized as Safe (GRAS) have complied
with the applicable statutes and regulations enforced by the
FDA
(ee)
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.
(ff)
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.
(gg)
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. Notwithstanding the foregoing, for purposes of this
Section 3.1(gg), “Affiliates” does not include the
Previous Purchasers or Persons who are Affiliates of the Company
solely because they are holders of the Company’s
securities.
(hh)
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.
(ii)
Acknowledgment
Regarding Purchasers’ Purchase of Shares. The Company
acknowledges and agrees that each of the Purchasers is acting
solely in the capacity of an arm’s length purchaser with respect to
the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is
acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and
the transactions contemplated thereby and any advice given by any
Purchaser or any of their respective representatives or agents in
connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the
Purchasers’ purchase of
the Shares. The Company further represents to each Purchaser that
the Company’s decision to
enter into this Agreement and the other Transaction Documents has
been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its
representatives.
-16-
(jj)
Acknowledgement
Regarding Purchaser’s Trading Activity. Anything in
this Agreement or elsewhere herein to the contrary notwithstanding
(except for Section 3.2(f) hereof), it is understood and
acknowledged by the Company that: (i) as of the date of this
Agreement, none of the Purchasers has been asked by the Company to
agree, nor has any Purchaser agreed, to desist from purchasing or
selling, long and/or short, securities of the Company, or
“derivative” securities based on securities
issued by the Company or to hold the Shares for any specified term;
(ii) past or future open market or other transactions by any
Purchaser, specifically including, without limitation, Short Sales
or “derivative”
transactions, before or after the closing of this or future private
placement transactions, may negatively impact the market price of
the Company’s
publicly-traded securities; (iii) any Purchaser, and
counter-parties in “derivative” transactions to which any such
Purchaser is a party, directly or indirectly, presently may have a
“short” position in the Common Stock, and
(iv) each Purchaser shall not be deemed to have any affiliation
with or control over any arm’s length counter-party in any
“derivative” transaction. The Company further
understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities at various times during the period
that the Shares are outstanding in compliance with all applicable
Laws, and (z) such hedging activities (if any) could reduce the
value of the existing stockholders' equity interests in the Company
at and after the time that the hedging activities as conducted in
compliance with all applicable Laws, are being
conducted. The Company
acknowledges that such aforementioned hedging activities do not
constitute a breach of any of the Transaction
Documents.
(kk)
Regulation
M Compliance. The
Company has not, and to its knowledge no one acting on its behalf
has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of any of the Shares, (ii) sold, bid for, purchased, or,
paid any compensation for soliciting purchases of, any of the
Shares, or (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii)
and (iii), compensation paid to the Placement Agent in connection
with the placement of the Shares.
(ll)
Environmental
Matters. The Company and its Subsidiaries (i) are in
compliance in all material respects with any and all Environmental
Laws (as hereinafter defined), (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 in all material respects with all terms and
conditions of any such permit, license or approval where, in each
of the foregoing clauses (i), (ii) and (iii), the failure to so
comply or to have received any such permits, licenses or other
approvals would be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect. The term
“Environmental
Laws” means all federal, state, local or foreign laws
relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), including,
without limitation, 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 and applicable to the Company. To the
knowledge of the Company, neither it nor any of its Subsidiaries
(i) owns or operates any real property contaminated with any
substance that is in violation of any Environmental Laws, (ii) is
liable for any offsite disposal or contamination pursuant to any
Environmental Laws, or (iii) is subject to any Action or claim
relating to any Environmental Laws, in each case, which violation,
contamination, liability, Action or claim has had, or would have,
individually or in the aggregate, a Material Adverse Effect; and
there is no pending investigation or, to the Company’s Knowledge, investigation
threatened in writing that might lead to such a claim.
(mm)
Warranties
and Product Liabilities. Since January 1, 2013, there have
been no claims against the Company or its Subsidiaries for product
liability, personal injury, property damage, indemnity, warranty or
other similar claims arising from the ingestion or other use of the
Products of the Company or its Subsidiaries. There are no material
Liabilities arising from any injury resulting from the ingestion or
other use of the Company’s Products, or arising from warranty
or other claims or returns with respect to any Product(s),
individually or in the aggregate. All Products have been designed,
developed, manufactured, labeled, packaged, processed, handled,
stored, advertised, marketed, sold, transported and/or distributed
so as to meet and comply in all material respects with all
applicable standards and requirements of any Governmental
Authority, product specifications, applicable licenses or
contractual commitments and express warranties.
-17-
(nn)
Employee Benefit
Plans
(i) Each Employee Plan that is intended
to qualify under Section 401(a) of the Code is so qualified and has
received a favorable determination or approval letter from the IRS
with respect to such qualification, or may rely on an opinion
letter issued by the IRS with respect to a prototype plan adopted
in accordance with the requirements for such reliance, or has time
remaining for application to the IRS for a determination of the
qualified status of such Employee Plan for any period for which
such Employee Plan would not otherwise be covered by an IRS
determination and, to the knowledge of the Company, no event or
omission has occurred that would cause any Employee Plan to lose
such qualification.
(ii) Each Employee Plan is, and has been
operated in material compliance with applicable laws and
regulations and is and has been administered in all material
respects in accordance with applicable laws and regulations and
with its terms. No litigation or governmental administrative
proceeding, audit or other proceeding (other than those relating to
routine claims for benefits) is pending or, to the knowledge of the
Company, threatened with respect to any Employee Plan or, to the
knowledge of the Company, any fiduciary or service provider
thereof, and, to the knowledge of the Company, there is no
reasonable basis for any such litigation or proceeding. All
payments and/or contributions required to have been made with
respect to all Employee Plans either have been made or have been
accrued in accordance with the terms of the applicable Employee
Plan and applicable law. The Employee Plans satisfy in all material
respects any applicable minimum coverage and discrimination
requirements under the Code.
(iii)
Neither the Company nor any ERISA Affiliate has ever maintained,
contributed to, or been required to contribute to (a) any employee
benefit plan that is or was subject to Title IV of ERISA, Section
412 of the Code, Section 302 of ERISA, (b) a Multiemployer Plan,
(c) any funded welfare benefit plan within the meaning of Section
419 of the Code, (d) any “multiple employer plan” (within the meaning of Section 210
of ERISA or Section 413(c) of the Code), or (e) any “multiple employer welfare
arrangement” (as such
term is defined in Section 3(40) of ERISA), and neither the Company
nor any ERISA Affiliate has ever incurred any liability under Title
IV of ERISA that has not been paid in full.
(iv) None of the Employee Plans provides
health care or any other non-pension benefits to any employees
after their employment is terminated (other than as required by
Part 6 of Subtitle B of Title I of ERISA or similar state law) and
the Company has never promised to provide such post-termination
benefits, other than employment agreements or offer letters with
certain of the company’s
officers that provide for post-termination health
benefits.
(v) The per share exercise price of each
Company Option is no less than the fair market value of a share of
Common Stock on the date of grant of such Company Option determined
in a manner consistent with Section 409A of the Code. Each Employee
Plan that constitutes in any part a nonqualified deferred
compensation plan within the meaning of Section 409A of the Code
has been operated and maintained in all material respects in
operational and documentary compliance with Section 409A of the
Code and applicable guidance thereunder. No payment to be made
under any Employee Plan is, or to the knowledge of the Company,
will be, subject to the penalties of Section 409A(a)(1) of the
Code.
(vi) No
Employee Plan is subject to the laws of any jurisdiction outside
the United States.
(vii) Neither
the execution and delivery of this Agreement nor the consummation
of the transactions contemplated hereby could (either alone or in
conjunction with any other event): (a) result in, or cause the
accelerated vesting, payment, funding or delivery of, or increase
the amount or value of, any payment or benefit to any employee,
officer, director or other service provider of the Company or any
of its Subsidiaries; (b) result in any “parachute payment” as defined in Section 280G(b)(2) of
the Code (whether or not such payment is considered to be
reasonable compensation for services rendered); or (c) result in a
requirement to pay any tax “gross-up” or similar “make-whole” payments to any employee, director
or consultant of the Company or any Subsidiary.
(viii)
No Employee Plan, individually
or collectively, could give rise to the payment of any amount that
would not be deductible pursuant to Section 162(m) of the Code or
any other provision of the Code or any similar foreign law, as a
result of the transactions contemplated by this Agreement alone or
together with any other event.
-18-
(oo)
Critical
Technology. Neither
the Company nor any subsidiary is a U.S. business that produces,
designs, tests, manufactures, fabricates, or develops a critical
technology that is (a) utilized in connection with the U.S.
business’s activity in one or more pilot program industries,
or (b) designed by the U.S. business specifically for use in one or
more pilot program industries, as these terms are defined at 31
C.F.R. Part 801.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself
and for no other Purchaser, hereby represents and warrants as of
the date hereof and as of the Closing Date to the Company as
follows (unless as of a specific date therein, in which case they
shall be accurate as of such date):
(a)
Organization;
Authority. Such Purchaser is either an individual or an
entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation with full right, corporate, partnership limited liability
company or similar power and authority to enter into and to
consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of the Transaction Documents
and performance by such Purchaser of the transactions contemplated
by the Transaction Documents have been duly authorized by all
necessary corporate, partnership, limited liability company or
similar action, as applicable, on the part of such Purchaser. Each
Transaction Document to which it is a party has been duly executed
by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Purchaser, enforceable against
it 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 and (ii) insofar
as indemnification and contribution provisions may be limited by
applicable law.
(b)
Understandings or
Arrangements. Such Purchaser is acquiring the Shares as
principal for its own account and not with a present view toward
the public sale or distribution thereof, and has no present
intention of selling or distributing any of the Shares or any
direct or indirect arrangement or understanding with any other
persons to distribute or regarding the distribution of the Shares
(this representation and warranty not obligating Purchaser to hold
any of the Securities for any minimum or other specific term, nor
limiting such Purchaser’s
right to sell the Shares pursuant to the pursuant to an effective
registration statement under the Securities Act or otherwise in
compliance with applicable federal and state securities laws). Such
Purchaser is acquiring the Shares hereunder in the ordinary course
of its business. Such Purchaser will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Shares except pursuant to and in accordance with the
Securities Act.
(c)
Purchaser
Status. At the time such Purchaser was offered the Shares,
it was, and as of the date hereof it is either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a
“qualified institutional
buyer” as defined in Rule
144A(a) under the Securities Act. Such Purchaser is not a
broker-dealer registered under Section 15 of the Exchange Act. Each Purchaser is acting alone in
its determination as to whether to invest in the
Shares.
(d)
Experience of Such
Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Shares,
and has so evaluated the merits and risks of such investment. Such
Purchaser is able to bear the economic risk of an investment in the
Shares and, at the present time, is able to afford a complete loss
of such investment.
(e)
Access to
Information. Such Purchaser acknowledges that it has had the
opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports and has been
afforded, (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives
of the Company concerning the terms and conditions of the offering
of the Shares and the merits and risks of investing in the Shares;
(ii) access to information (other than material non-public
information) about the Company and its financial condition, results
of operations, business, properties, management and prospects
sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense
that is necessary to make an informed investment decision with
respect to the investment. Such Purchaser acknowledges and agrees
that neither the Placement Agent nor any Affiliate of the Placement
Agent has provided such Purchaser with any information or advice
with respect to the Shares nor is such information or advice
necessary or desired. Neither the Placement Agent nor any Affiliate
has made or makes any representation as to the Company or the
quality of the Shares. In connection with the issuance of the
Shares to such Purchaser, neither the Placement Agent nor any of
its Affiliates has acted as a financial advisor or fiduciary to
such Purchaser.
-19-
(f)
Certain Transactions
and Confidentiality. Other than consummating the
transactions contemplated hereunder, such Purchaser has not, nor
has any Person acting on behalf of or pursuant to any understanding
with such Purchaser, directly or indirectly executed any purchases
or sales, including Short Sales, of the securities of the Company
during the period commencing as of the time that such Purchaser
first received a term sheet (written or oral) from the Company or
any other Person representing the Company setting forth the
material pricing terms of the transactions contemplated hereunder
and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such
Purchaser’s assets, the
representation set forth above shall only apply with respect to the
portion of assets managed by the portfolio manager that made the
investment decision to purchase the Shares covered by this
Agreement. Other than to other Persons party to this Agreement or
to such Purchaser’s
representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents
and Affiliates, such Purchaser has maintained the confidentiality
of all disclosures made to it in connection with this transaction
(including the existence and terms of this
transaction).
(g)
Foreign
Purchasers. If any Purchaser is not a United
States person (as defined by Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended, or if Purchaser is a US
subsidiary or affiliate of a foreign parent company, “Foreign
Purchaser”), each
such Purchaser hereby represents that it has satisfied itself as to
its full observance of the laws of its jurisdiction in connection
with any invitation to subscribe for the Shares or any use of this
Agreement, including (i) the legal requirements within its
jurisdiction for the purchase of the Shares, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any
government or other consents that it may need to obtain, and (iv)
the income tax and other tax consequences, if any, that may be
relevant to the purchase, holding, redemption, sale or transfer of
the Shares. Any Foreign Purchaser’s subscription and payment
for and continued beneficial ownership of the Shares will not
violate any applicable securities or other laws of Foreign
Purchaser’s jurisdiction.
(h)
Legends.
Subject to Section 4.8 below, each Purchaser understands that the
certificates representing the Shares will bear a restrictive legend
in substantially the following form (and a stop-transfer order may
be placed against transfer of the certificates for such
Shares):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED,
SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. THE
COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED TO THE EXTENT THAT SUCH OPINION IS REQUIRED PURSUANT
TO THAT CERTAIN COMMON STOCK PURCHASE AGREEMENT UNDER WHICH THE
SECURITIES WERE ISSUED.
(i)
Reliance on
Exemptions. Such Purchaser understands that the Shares are
being offered and sold to it in reliance upon specific exemptions
from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the
truth and accuracy of, and Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of Purchaser set forth herein in order to determine
the availability of such exemptions and the eligibility of
Purchaser to acquire the Shares.
The
Company acknowledges and agrees that the representations contained
in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely
on the Company’s
representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction
Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of
the transactions contemplated hereby.
-20-
ARTICLE IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Furnishing
of Information. Until the time that no Purchaser owns
Shares, the Company covenants to timely file (or obtain extensions
in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act even if the Company is not then
subject to the reporting requirements of the Exchange
Act.
4.2 Integration.
The Company shall not sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Shares for purposes of the rules and
regulations of any Trading Market such that it would require
stockholder approval prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such
subsequent transaction. The Company and the Purchasers acknowledge
that the sale of the Shares pursuant to this Agreement may be
integrated with the securities sold pursuant to that certain Note
Purchase Agreement, dated May 9, 2019, by and among the Company and
the purchasers named therein (the “Note Financing”),
and that the sale of Shares pursuant to this Agreement when
integrated with the Note Financing shall not require stockholder
approval under the rules and regulations of any Trading
Market.
4.3 Securities
Laws Disclosure; Publicity. The Company shall (a) prior to
8:00 a.m. (New York City time) on the Trading Day immediately
following the date hereof, issue a press release (the “Press
Release”) in form
and substance reasonably acceptable to the Purchasers disclosing
the material terms of the transactions contemplated hereby (but not
disclosing the identity of the Purchasers), and (b) file a Current
Report on Form 8-K, describing the terms of the transactions
contemplated by the Transaction Documents in the form required by
the Exchange Act and attaching the material Transaction Documents
as exhibits thereto, with the Commission within the time required
by the Exchange Act (such filing, together with all attachments and
exhibits, the “8-K
Filing”). From and
after the issuance of the Press Release: (i) the Company represents
to the Purchasers that it shall have publicly disclosed all
material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries, or any of their
respective officers, directors, employees or agents in connection
with the transactions contemplated by the Transaction Documents;
and (ii) the Company shall not, and the Company shall cause each of
its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to provide any Purchaser with
any material, non-public information regarding the Company or any
of its Subsidiaries without the express prior written consent of
such Purchaser. In addition, effective upon the issuance of such
Press Release, the Company acknowledges and agrees that any and all
confidentiality or similar obligations under any agreement, whether
written or oral, between the Company, any of its Subsidiaries or
any of their respective officers, directors, agents, employees or
Affiliates on the one hand, and any of the Purchasers or any of
their Affiliates on the other hand, shall terminate, except any
confidentiality and similar obligations that may exist in
connection with a Purchaser’s relationship with a member of
the Board of Directors. The Company shall consult with Purchasers,
and consider in good faith any comments Purchasers may have on, the
8-K Filing. Without limiting the generality of the foregoing, from
and after the date of this Agreement until the date on which the
Purchasers cease to hold any Shares, the Company shall not,
directly or indirectly, issue any press release or make any filing
with the Commission, in each case, to the extent such press release
or filing identifies any Purchaser or the transactions contemplated
by this Agreement, unless the Company first consults with each
Purchaser, and considers in good faith any comments that any
Purchaser may have on, such materials; provided, that the Company may
make any subsequent press release or filings with the Commission
that are substantially consistent in form with any such materials
previously approved by the Purchasers in the manner provided for in
this Section 4.3 without being required to first consult the
Purchasers as otherwise required in this Section 4.3.
Notwithstanding anything to the contrary herein, the Company shall
not issue any press release or otherwise make any public statement
that identifies a Purchaser without such Purchaser’s prior
written consent; provided that, for the avoidance of
doubt the Company shall be permitted to identify a Purchaser in any
filing required to be made with the Commission but only to the
extent that the identification of such Purchaser is expressly
required, and subject to the consultation rights and right to
comment contained in the immediately preceding
sentence.
4.4 Stockholder
Rights Plan. No claim will be made or enforced by the
Company or, with the consent of the Company, any other Person, that
any Purchaser 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 Purchaser could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving
Shares under the Transaction Documents or under any other agreement
between the Company and such Purchaser.
4.5 Use
of Proceeds. The Company shall use the net proceeds from the
sale of the Shares hereunder for working capital purposes and shall
not use such proceeds: (a) for the satisfaction of any portion of
the Company’s debt (other
than payment of trade payables in the ordinary course of the
Company’s business and
prior practices), (b) for the redemption of any Common Stock or
Common Stock Equivalents, or (c) in violation of FCPA or the Office
of Foreign Assets Control of the U.S. Department of the Treasury
regulations or other laws which are applicable to the
Company.
-21-
4.6 Indemnification
of Purchasers. Subject to the provisions of this Section
4.6, the Company will indemnify and hold each Purchaser and its
directors, officers, stockholders, members, partners, employees and
agents (and any other Persons with a functionally equivalent role
of a Person holding such titles notwithstanding a lack of such
title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, or is otherwise an Affiliate of such
Purchaser), and the directors, officers, stockholders, agents,
members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such
controlling persons and such Affiliates (each, a “Purchaser
Party”) harmless
from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs
of investigation that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the
representations, warranties, covenants or agreements made by the
Company in this Agreement or in the other Transaction Documents or
(b) any action instituted against the Purchaser Parties in any
capacity, or any of them or their respective Affiliates, by (i) any
current or former stockholder of the Company who is not an
Affiliate of such Purchaser Party, with respect to any of the
transactions contemplated by the Transaction Documents or (ii) any
other third-party with respect to any of the transactions
contemplated by the Transaction Documents (unless, in either case,
such action is based upon a breach of such Purchaser
Party’s representations,
warranties or covenants under the Transaction Documents or any
agreements or understandings such Purchaser Party may have with any
such stockholder or any violations by such Purchaser Party of state
or federal securities laws or any conduct by such Purchaser Party
which constitutes fraud, gross negligence, willful misconduct or
malfeasance). If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this
Agreement, such Purchaser Party shall promptly notify the Company
in writing (it being agreed that the failure to so notify the
Company shall not affect the right to indemnification hereunder
except to the extent that that the Company is materially prejudiced
thereby), and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party, which right shall remain in
effect if and for so long as the Company continues to diligently
defend against such action; provided, that
in no event shall the Company be entitled to assume the defense of
any action if such action (i) is with respect to a criminal
proceeding, action, indictment, allegation or investigation or (ii)
seeks an injunction or other equitable relief against any Purchaser
Party. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense
of such Purchaser Party except to the extent that (i) the
employment thereof has been specifically authorized by the Company
in writing, (ii) the Company has failed after a reasonable period
of time to assume such defense and to employ counsel or (iii) in
such action there is, in the reasonable opinion of counsel, a
material conflict on any material issue between the position of the
Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses
of no more than one such separate counsel. The Company will not be
liable to any Purchaser Party under this Agreement (y) for any
settlement by a Purchaser Party effected without the
Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or
(z) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser
Party’s breach of any of
the representations, warranties, covenants or agreements made by
such Purchaser Party in this Agreement or in the other Transaction
Documents. If the Company has assumed the defense of any action in
accordance with this Section 4.6, the Company shall diligently
defend such action to a final non-appealable adjudication or
settlement, provided, however, that in no event may
the Company settle any action without the consent of the Purchaser
Party (not to be unreasonably withheld or delayed) unless such
settlement provides for only monetary relief payable entirely by
the Company and does not involve any admission of wrongdoing. The
indemnification required by this Section 4.6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or are
incurred. The indemnity agreements contained herein shall be in
addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company
may be subject to pursuant to law.
4.7 Listing
of Common Stock. The Company hereby agrees to use reasonable
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 Shares on such Trading Market and promptly secure
the listing of all of the 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 Shares, and will take such other action
as is reasonably necessary to cause all of the 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.
-22-
4.8 Share
Certificates; Transfers.
(a) Any
Purchaser shall have the right to request removal of the legend set
forth in Section 3.2(h) above or any other legend from certificates
evidencing Shares in any of the following circumstances: (i)
following the sale of such Shares pursuant to Rule 144 (assuming
the transferor is not an affiliate of the Company); (ii) following
the sale of such Shares pursuant to a re-sale registration
statement; or (iii) if such legend is not required under applicable
requirements of the Securities Act (including, without limitation,
controlling judicial interpretations and pronouncements issued by
the SEC).
(b)
Upon receipt of a request from Purchaser under Section 4.8(a)
above, the Company shall, at its own expense, no later than three
(3) Trading Days following the delivery by a Purchaser to the
Company or the Company’s transfer agent (with notice to the
Company) of a legended certificate representing such Shares
(endorsed or with stock powers attached, signatures guaranteed, and
otherwise in form necessary to affect the reissuance and/or
transfer, if applicable), together with any other deliveries from
such Purchaser as may be required above in this Section 4.8, as
directed by such Purchaser, either: (A) provided that the
Company’s transfer agent is participating in the Depository
Trust Company (“DTC”) Fast Automated
Shares Transfer Program, credit the aggregate number of shares of
Common Stock to which such Purchaser shall be entitled to such
Purchaser’s or its designee’s balance account with DTC
through its Deposit Withdrawal at Custodian system or (B) if the
Company’s transfer agent is not participating in the DTC Fast
Automated Shares Transfer Program, issue and dispatch by overnight
courier to such Purchaser, a certificate representing such Shares
that is free from all restrictive and other legends, registered in
the name of such Purchaser or its designee.
4.9 Equal
Treatment of Purchasers. No consideration (including any
modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of
any provision of the Transaction Documents unless the same
consideration is also offered to all of the parties to such
Transaction Document. For clarification purposes, this provision
constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser, and is
intended for the Company to treat the Purchasers as a class and
shall not in any way be construed as the Purchasers acting in
concert or as a group with respect to the purchase, disposition or
voting of Shares or otherwise.
4.10
Certain
Transactions and Confidentiality. Each Purchaser, severally
and not jointly with the other Purchasers, covenants that neither
it nor any Affiliate acting on its behalf or pursuant to any
understanding with it will execute any purchases or sales,
including Short Sales of any of the Company’s securities during the period
commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as
described in Section
4.3. Each
Purchaser, severally and not jointly with the other Purchasers,
covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to
the initial press release as described in Section 4.3, such
Purchaser will maintain the confidentiality of the existence and
terms of this transaction and the information included in the
Disclosure Schedule. Notwithstanding
the foregoing, the Company expressly acknowledges and agrees that
(i) no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in effecting transactions in any
securities of the Company after the time that the transactions
contemplated by this Agreement are first publicly announced
pursuant to the press release as described in Section 4.3
(so long as such transactions comply with all applicable Laws and,
if applicable, the Company’s xxxxxxx xxxxxxx, securities
trading and similar policies), (ii) no Purchaser shall be
restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities
Laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the press
release described in Section 4.3 (so long as such transactions
comply with all applicable Laws, and, if applicable, the
Company’s xxxxxxx xxxxxxx, securities trading and similar
policies) and (iii) no Purchaser shall have any duty of
confidentiality or duty not to trade in the securities of the
Company to the Company or its Subsidiaries after the issuance of
the press release as described in Section 4.3 (other than, if
applicable, under confidentiality policies of the Company, any
confidentiality agreement referenced in Section 5.2 and any
confidentiality and similar obligations that may exist in
connection with a Purchaser’s relationship with a member of
the Board of Directors). Notwithstanding the foregoing, in the case
of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct
knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s assets
or internal access to information received by the portfolio
managers managing other portions of such Purchaser’s assets
in connection with such portfolio managers’ investment
decisions, the covenant set forth above shall only apply with
respect to the portion of assets managed by the portfolio manager
that made the investment decision to purchase the Shares covered by
this Agreement.
4.11 Reservation
of Shares. 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 for
the purpose of enabling the Company to issue Shares pursuant to
this Agreement.
-23-
ARTICLE V.
MISCELLANEOUS
5.1
Fees and
Expenses. Each party shall pay all fees and expenses that it
incurs (including on account of any of their respective advisers,
counsel, accountants and other experts) in connection with the
negotiation, preparation, execution and delivery of this Agreement
(including all Transfer Agent fees (including, without limitation,
any fees required for same-day processing of any instruction letter
delivered by the Company), stamp taxes and other taxes and duties
levied in connection with the delivery of any Shares to the
Purchasers) (collectively, the “Transaction
Expenses”);
provided,
however, that
the Company shall reimburse the Transaction Expenses of the
Purchaser listed in Schedule 5.1 in an amount not to exceed
$60,000; provided,
further, that
all Transfer Agent fees and transfer taxes arising in connection
with the sale and transfer of the Shares hereunder shall be borne
by the Company.
5.2 Entire
Agreement. The Transaction Documents, together with the
exhibits and schedules thereto, and any confidentiality agreements
between the parties currently in existence, 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.
5.3 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 as 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 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. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or
contains, material, non-public information regarding the Company or
any Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form
8-K.
5.4 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 each
Purchaser, or, in the case of a waiver, by the party against whom
enforcement of any such waived provision is sought; provided, that
no waiver of any rights hereunder by one Purchaser shall be
effective as against any other Purchaser. 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. Any amendment effected in
accordance with accordance with this Section 5.4 shall be binding
upon each Purchaser and the Company.
5.5 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.
5.6
Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each
Purchaser (other than by merger).
5.7
No Third-Party
Beneficiaries. The Placement Agent shall be a third party
beneficiary of the representations and warranties of the Company in
Section 3.1 hereof. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof
be enforced by, any other Person, except as otherwise set forth in
Section 4.6 and this Section 5.7.
-24-
5.8 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, stockholders,
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 or
Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such 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 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 any 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 Section
4.6, the prevailing party in such Action or Proceeding shall be
reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other
costs and expenses incurred with the investigation, preparation and
prosecution of such Action or Proceeding.
5.9
Survival. The
representations and warranties contained herein shall survive the
Closing and the delivery of the Shares.
5.10
Attorneys’
Fees. In the event that any Action is instituted under or in
relation to this Agreement, including without limitation to enforce
any provision in this Agreement, the prevailing party in such
dispute shall be entitled to recover from the losing party all
fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
5.11
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.
5.12
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.
5.13
Rescission
and Withdrawal Right. Notwithstanding anything to the
contrary contained in (and without limiting any similar provisions
of) any of the other Transaction Documents, whenever any Purchaser
exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related
obligations within the periods therein provided, then, until the
time the Company performs such obligations, such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or
election in whole or in part without prejudice to its future
actions and rights.
5.14
Replacement of
Shares. If any certificate or instrument evidencing any
Shares is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and
upon cancellation thereof (in the case of mutilation), or in lieu
of and substitution therefor, a new certificate or instrument, but
only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction. The applicant for a new
certificate or instrument under such circumstances shall also pay
any reasonable third-party costs (including customary indemnity)
associated with the issuance of such replacement
Shares.
-25-
5.15 Remedies.
In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, each of
the Purchasers 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.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or
payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such
payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are
several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the
performance or non-performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein
or in any other Transaction Document, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to constitute
the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Purchaser shall be entitled to
independently protect and enforce its rights including, without
limitation, the rights arising out of this Agreement or out of the
other Transaction Documents, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any
Proceeding for such purpose. The Company has elected to provide all
Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or
requested to do so by any of the Purchasers. It is expressly
understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the
Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the
Purchasers. It is expressly acknowledged and agreed by the Company
and each Purchaser that each Purchaser has and shall continue to
make independent decisions concerning its investment in the Company
and exercising or refraining from exercising any rights under any
of the Transaction Documents and that no inference, presumption or
conclusion that such Purchasers constitute a “Group”
within the meaning of Section 13(d)(3) of the Exchange Act or Rule
13d-5 thereunder shall be raised in connection with the
investigation, execution, delivery, amendment, modification,
waiver, performance or consummation of this Agreement or any of the
transactions contemplated hereby, notwithstanding the fact that (i)
certain Purchasers are now or may in the future be represented by
the same or similar advisors, agents, counsel or other
representatives, (ii) the Purchasers collectively may exercise or
refrain from exercising rights under the Transaction Documents in
the same manner or (iii) such rights under the Transaction
Documents may have been negotiated by the Purchasers with the
Company at the same time, or may be amended or modified with the
Company in the same or a similar manner. None of the Purchasers are
under common control, and none of such parties is an Affiliate of,
or affiliated with, one another. The parties hereto shall not act
together or create a partnership-in-fact or otherwise with respect
to the Company or any of its Subsidiaries.
5.18 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.
5.19 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.
5.20 WAIVER
OF JURY TRIAL. IN
ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND
INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
-26-
5.21 Tax
Filings. The Company shall cooperate, and shall cause each
of its Subsidiaries to cooperate, with each Purchaser in providing
such Purchaser with any information reasonably requested by such
Purchaser for it to timely make all filings, returns, reports,
forms or calculations in order to assist each Purchaser and their
direct and indirect owners with the preparation of their tax
returns, obtaining any benefit pursuant to applicable Tax law, or
complying with any other Tax law that any Purchaser or their direct
or indirect owners are subject.
5.22
Disclosure
Schedule. Any matter or item disclosed in one section of the
Disclosure Schedule shall be deemed to have been disclosed in each
other section of the Disclosure Schedule in which it is reasonably
apparent on the face of such disclosure that the information is
required to be so disclosed.
5.23
Waiver of
Conflicts. Each party to this Agreement acknowledges that
Company Counsel, outside general counsel to the Company, has in the
past performed and is or may now or in the future represent one or
more Purchasers or their affiliates in matters unrelated to the
transactions contemplated by this Agreement (the “Financing”),
including representation of such Purchasers or their affiliates in
matters of a similar nature to the Financing. The applicable rules
of professional conduct require that Company Counsel inform the
parties hereunder of this representation and obtain their consent.
Company Counsel has served as outside general counsel to the
Company and has negotiated the terms of the Financing solely on
behalf of the Company. The Company and each Purchaser hereby
(a) acknowledge that they
have had an opportunity to ask for and have obtained information
relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation;
(b) acknowledge that with
respect to the Financing, Company Counsel has represented solely
the Company, and not any Purchaser or any stockholder, director or
employee of the Company or any Purchaser; and (c) gives its informed consent to Company
Counsel’s representation
of the Company in the Financing.
5.24
Termination. This
Agreement may be terminated by the Company or any Purchaser, by
written notice to the other parties, if the Closing has not been
consummated by the thirtieth (30th) calendar day following the date
of this Agreement; provided that no such termination will affect
the right of any party to xxx for any breach by the other party (or
parties).
(Signature Pages Follow)
-27-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
|
CHROMADEX CORPORATION
|
Address for Notice:
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, XX 00000
|
|
By:
/s/ Xxxxxx Xxxxx
Name: Xxxxxx
Xxxxx
Title: Chief Executive
Officer
With a
copy to (which shall not constitute notice):
|
E-Mail:
xxx.xxxxx@xxxxxxxxx.xxx
|
|
Xxxxxx
LLP
Xxxxxx
X. Xxxx
E-mail:
xxxxxx@xxxxxx.xxx
Fax:
(000) 000-0000
|
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
|
Name of
Purchaser:
|
GIC
Private Limited
|
|
|
|
|
Signature of Authorized
Signatory of Purchaser:
|
/s/ Xxxxx Xxx Xxxx
Xxxx
|
|
|
|
|
Name of Authorized
Signatory:
|
Xxxxx Xxx Xxxx
Xxxx
|
|
|
|
|
Title of Authorized
Signatory:
|
Managing
Director
|
|
|
|
|
Signature of Authorized
Signatory of Purchaser:
|
/s/ Xxxxxxx Xxx Sing
Siong
|
|
|
|
|
Name of Authorized
Signatory:
|
Xxxxxxx Xxx Sing Siong
|
|
|
|
|
Title of Authorized
Signatory:
|
General
Counsel
|
|
|
Closing
|
|
Subscription Amount
|
$4,999,996.30
|
|
Shares
|
1,119,820
|
IN
WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
|
Name of
Purchaser:
|
Grandwin
Enterprises Limited
|
|
|
|
|
Signature of Authorized
Signatory of Purchaser:
|
/s/
Pak To Xxxxx
|
|
|
|
|
Name of Authorized
Signatory:
|
Pak To
Xxxxx
|
|
|
|
|
Title of Authorized
Signatory:
|
Sole
Director
|
|
|
|
|
|
Closing
|
|
Subscription Amount
|
$1,999,998.52
|
|
Shares
|
447,928
|
EXHIBIT A
FORM OF COMPANY COUNSEL OPINION
EXHIBIT B
FORM OF REGISTRATION RIGHTS AGREEMENT
