Exhibit 1.1 to
Ladenburg Xxxxxxxx S-3
[LOGO] LADENBURG
XXXXXXXX
March 16, 2000
Xxxx Xxxx
Chairman/ Chief Financial Officer
APA Optics, Inc.
0000 X.X. 00xx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxx:
The purpose of this letter agreement (the "Agreement") is to set forth the terms
and conditions pursuant to which Ladenburg Xxxxxxxx & Co. Inc. ("LTCO") shall
serve as exclusive placement agent in connection with the proposed offering (the
"Offering") of equity securities (the "Securities") of APA Optics, Inc. (the
"Company") pursuant to a registration statement on Form S-3. The gross proceeds
from the Offering will be up to $100,000,000. All references to dollars shall be
to U.S. dollars. The terms of such Offering and the Securities shall be as
agreed to between the Company and the purchasers thereof. The Company may accept
or reject any offer to purchase the Securities, in whole or in part, in its sole
discretion.
Upon the terms and subject to the conditions of this Agreement, the
parties hereto agree as follows:
1. APPOINTMENT. (a) Subject to the terms and conditions of this
Agreement hereinafter set forth, the Company hereby retains LTCO, and LTCO
hereby agrees to act as the Company's exclusive placement agent and financial
advisor in connection with the Offering, effective as of the date hereof. The
Company expressly acknowledges and agrees that LTCO's obligations hereunder are
on a reasonable best efforts basis only and that the execution of this Agreement
does not constitute a commitment by LTCO to purchase the Securities and does not
ensure the successful placement of the Securities or any portion thereof or the
success of LTCO with respect to securing any other financing on behalf of the
Company. LTCO shall not commence any selling efforts until the registration
statement has been declared effective by the SEC.
(b) Except as set forth below in this Section 1, during the
effectiveness of this Agreement, neither the Company nor any of its subsidiaries
or affiliates shall, directly or indirectly, through any officer, director,
employee, agent or otherwise (including, without limitation, through any
placement agent, broker, investment banker, attorney or accountant retained by
the Company or any of its subsidiaries or affiliates), solicit, initiate or
encourage the submission of any proposal or offer (an "Investment Proposal")
from any person or entity (including any of such person's or entity's officers,
directors, employees, agents and other representatives) relating to any issuance
of the Company's or any of its subsidiaries' equity securities (including debt
securities with any equity feature) or relating to any other transaction having
a similar effect or result on the Company's or any of its subsidiaries'
capitalization, or participate in any discussions or negotiations regarding, or
furnish to any other person or entity any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage any effort or attempt by any other person or entity to do or seek to
do any of the foregoing. The Company shall immediately cease and cause to be
terminated any and all contacts, discussions and negotiations with third parties
regarding any Investment Proposal. The Company shall promptly notify LTCO if any
such Investment Proposal, or any inquiry or contact with any person or entity
with respect thereto, is made. The Company shall not provide or release any
information with respect to this Agreement or the Offering except as required by
law. This Section 1(b) shall not apply to the Company's 2% Convertible Preferred
Stock.
(c) Notwithstanding anything to the contrary contained herein, in the
event that LTCO shall not provide to the Company within three months after the
effective date of the registration statement one or more qualified institutional
investors reasonably acceptable to the Company willing to invest in the
aggregate at least $25,000,000 in the Offering on substantially the same terms
as agreed to between the Company and such investors, the Company shall have the
right to terminate this Agreement and/or to solicit and pursue other Investment
Proposals (subject to LTCO's rights to compensation under Section 3(b)). No
break-up fee shall be payable under Section 2(d) if the Company terminates this
Agreement pursuant to this Section 1(c).
2. FEES AND COMPENSATION. In consideration of the services rendered by
LTCO in connection with the Offering, the Company agrees to pay LTCO the
following fees and other compensation:
(a) 1) 3% warrant coverage on $50 million as commitment fee payable
immediately upon the initial closing which will be the date of
the completion of the initial draw down under the Offering;
after the Company draws down at least $50 million under the
Offering, 3% warrant coverage on the amount draw down by the
Company at each subsequent closing payable at the applicable
subsequent closing which will be the date of the completion of
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the applicable subsequent draw down under the Offering. The
warrant coverage shall be determined as follows: 3% * (for the
initial closing) $50,000,000 or (for subsequent closings) the
amount drawn down by the Company at the applicable subsequent
closing / 125% of the VWAP of the Company's common stock on
the trading day immediately preceding the applicable closing.
The Warrants shall have a term of three years and a strike
price equal to 125% of the VWAP of the Company's common stock
on the trading day immediately preceding the applicable
closing ("VWAP" shall mean the daily volume weighted average
price of the Company's Common Stock as reported by Bloomberg
Financial using the AQR function); and
2) a cash fee payable upon the initial and each subsequent
closing equal to 3% of the amount drawn down by the Company at
each such closing; and
(b) $35,000 non-accountable expense allowance.
(c) All amounts payable hereunder shall be paid to LTCO out of an
attorney escrow account at the closing or by such other means
acceptable to LTCO.
(d) If (i) LTCO has provided a qualified institutional investor,
as set forth in Section 1(c), who is acceptable to the
Company, and who is willing to invest at substantially the
terms agreed to between the Company and the investor, (ii) the
Company rejects the investor's offer and no sale of Securities
is made to such investor, and (iii) the Company terminates the
Agreement prior to March 31, 2001 (the "Termination Date"),
for reasons other than a breach of this Agreement by LTCO, the
Company will pay $200,000 to LTCO as a "break-up" fee.
3. TERMS OF RETENTION. (a) Unless extended or terminated in writing by
the parties hereto in accordance with the provisions hereof, this Agreement
shall remain in effect until the Termination Date of March 31, 2001.
(b) Notwithstanding anything herein to the contrary, the obligation to
pay the Fees and Compensation and Expenses described in Section 2, if any, and
paragraphs 2, 6, and 8 of Exhibit A and all of Exhibit B and Exhibit C attached
hereto, each of which exhibits is incorporated herein by reference, shall
survive any termination or expiration of the Agreement. It is expressly
understood and agreed by the parties hereto that any private financing of equity
or debt or other capital raising activity of the Company within 24 months of the
termination or expiration of this Agreement, with any investors (the number of
such investors shall not exceed seven without the Company's prior written
3
approval) to whom the Company was introduced by LTCO or who was contacted by
LTCO while this Agreement was in effect and disclosed to the Company in writing,
shall result in such fees and compensation being due and payable by the Company
to LTCO under the same terms of Section 2 above.
(c) In no event shall the number of shares of Common Stock issued in
the Offering, together with the number of shares issued and issuable pursuant to
the Company's 2% Convertible Preferred Stock and related warrants reach or
exceed 20% of the number of shares of common stock outstanding as of the date of
issuance of the 2% Convertible Preferred Stock, unless issuance in an amount of
20% or more has been approved by the shareholders.
4. RIGHT OF FIRST REFUSAL. If the investors to whom the Company was
introduced by LTCO pursuant hereto purchase in the aggregate at least
$50,000,000 of Securities under the Offering, then upon completion of the sale
of such $50,000,000 of Securities, LTCO shall have an irrevocable right of first
refusal for a period of one year to provide all private financing (i.e.
registered public offerings of debt and equity are excluded) for the Company
(other than conventional banking arrangements, borrowing and commercial debt
financing and discrete unrelated transactions of not more than $250,000 where no
investment banking fee is being paid). LTCO shall exercise such right in writing
within five (5) business days of receipt of a written term sheet describing such
proposed transaction in reasonable detail.
5. INFORMATION. The Company recognizes and confirms that in completing
its engagement hereunder, LTCO will be using and relying on publicly available
information and on data, material and other information furnished to LTCO by the
Company or the Company's affiliates and agents. It is understood and agreed that
in performing under this engagement, LTCO will rely upon the accuracy and
completeness of, and is not assuming any responsibility for independent
verification of, such publicly available information and the other information
so furnished. Notwithstanding the foregoing, it is understood that LTCO will
conduct a due diligence investigation of the Company and the Company will
cooperate in all respects with such investigation as a condition of LTCO's
obligations hereunder.
6. REGISTRATION. Promptly following execution of this Agreement, the
Company shall prepare and file with the SEC a registration statement. From time
to time in connection with any particular sale of Securities, the Company will,
at its own expense, obtain any registration or qualification required to sell
any Securities under the Blue Sky laws of any applicable jurisdictions, as
reasonably requested by LTCO.
7. NO GENERAL SOLICITATION. The Securities will be offered only by
approaching prospective purchasers on an individual basis. No general
solicitation or general advertising in any form will be used in connection with
the
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offering of the Securities. From and after the filing of the registration
statement, the Company shall pre-clear any proposed press release with LTCO.
8. CLOSING. The closing of the sale of the Securities shall be subject
to customary closing conditions, including the provision at closing by the
Company of officers' certificates, and opinion of counsel as to registration of
the Securities.
9. MISCELLANEOUS. This Agreement together with the attached Exhibits A
through C constitutes the entire understanding and agreement between the parties
with respect to its subject matter and there are no agreements or understandings
with respect to the subject matter hereof which are not contained in this
Agreement. This Agreement may be modified only in writing signed by the party to
be charged hereunder.
If the foregoing correctly sets forth our agreement, please confirm
this by signing and returning to us the duplicate copy of this letter.
We appreciate this opportunity to be of service and are looking forward
to working with you on this matter.
Very truly yours,
LADENBURG XXXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
Agreed to and accepted
as of the date first written above:
APA Optics, Inc.
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: President
5
Exhibit 1.1 to
Ladenburg Xxxxxxxx S-3
EXHIBIT A
STANDARD TERMS AND CONDITIONS
1. The Company shall promptly provide LTCO with all relevant information
about the Company (to the extent available to the Company in the case
of parties other than the Company) that shall be reasonably requested
or required by LTCO, which information shall be accurate in all
material respects at the time furnished.
2. LTCO shall keep all information obtained from the Company strictly
confidential except: (a) information which is otherwise publicly
available, or previously known to, or obtained by LTCO independently of
the Company and without breach of LTCO's agreement with the Company;
(b) LTCO may disclose such information to its employees and attorneys,
and to its other advisors and financial sources on a need to know basis
only and shall ensure that all such employees, attorneys, advisors and
financial sources will keep such information strictly confidential; and
(c) pursuant to any order of a court of competent jurisdiction or other
governmental body or as may otherwise be required by law, provided that
LTCO shall provide prior notice of such disclosure to the Company to
enable it to seek a protective order or other relief.
3. The Company recognizes that in order for LTCO to perform properly its
obligations in a professional manner, it is necessary that LTCO be
informed of and, to the extent practicable, participate in meetings and
discussions between the Company and any third party relating to the
matters covered by the terms of LTCO's engagement.
4. The Company agrees that any report or opinion, oral or written,
delivered to it by LTCO is prepared solely for its confidential use and
shall not be reproduced, summarized, or referred to in any public
document or given or otherwise divulged to any other person without
LTCO's prior written consent, except as may be required by applicable
law or regulation.
5. No fee payable to LTCO pursuant to any other agreement with the Company
or payable by the Company to any agent, lender or investor shall reduce
or otherwise affect any fee payable by the Company to LTCO hereunder.
6. The Company represents and warrants that: (a) it has full right, power
and authority to enter into this Agreement and to perform all of its
obligations hereunder; (b) this Agreement has been duly authorized and
executed and constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms; and (c) the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby does not conflict with or result in a breach of (i)
the Company's certificate of
incorporation or by-laws or (ii) any agreement to which the Company is
a party or by which any of its property or assets is bound.
7. Nothing contained in this Agreement shall be construed to place LTCO
and the Company in the relationship of partners or joint venturers.
Neither LTCO nor the Company shall represent itself as the agent or
legal representative of the other for any purpose whatsoever nor shall
either have the power to obligate or bind the other in any manner
whatsoever. LTCO, in performing its services hereunder, shall at all
times be an independent contractor.
8. This Agreement has been and is made solely for the benefit of LTCO and
the Company and each of the persons, agents, employees, officers,
directors and controlling persons referred to in Exhibit B and their
respective heirs, executors, personal representatives, successors and
assigns, and nothing contained in this Agreement shall confer any
rights upon, nor shall this Agreement be construed to create any rights
in, any person who is not party to such Agreement, other than as set
forth in this paragraph.
9. The rights and obligations of either party under this Agreement may not
be assigned without the prior written consent of the other party hereto
and any other purported assignment shall be null and void.
10. All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and shall be mailed, hand
delivered, or sent via facsimile and confirmed by letter, to the party
to whom it is addressed at the following addresses or such other
address as such party may advise the other in writing:
To the Company:
Xxxx Xxxx
APA Optics, Inc.
0000 X.X. 00xx Xxxx
Xxxxxx, XX 00000
TELEPHONE: (000) 000-0000
Facsimile: (000) 000-0000
To LTCO:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Xxxxxxxxx: (000) 000-0000
Facsimile: (000) 000-0000
All notices hereunder shall be effective upon receipt by the party to which it
is addressed.
2
Exhibit 1.1 to
Ladenburg Xxxxxxxx S-3
EXHIBIT B
INDEMNIFICATION
The Company agrees that it shall indemnify and hold harmless, LTCO, its
stockholders, directors, officers, employees, agents, affiliates and controlling
persons within the meaning of Section 20 of the Securities Exchange Act of 1934
and Section 15 of the Securities Act of 1933, each as amended (any and all of
whom are referred to as an "Indemnified Party"), from and against any and all
losses, claims, damages, liabilities, or expenses, and all actions in respect
thereof (including, but not limited to, all legal or other expenses reasonably
incurred by an Indemnified Party in connection with the investigation,
preparation, defense or settlement of any claim, action or proceeding, whether
or not resulting in any liability), incurred by an Indemnified Party: (a)
arising out of, or in connection with, any actions taken or omitted to be taken
by the Company, its affiliates, employees or agents, or any untrue statement or
alleged untrue statement of a material fact contained in any of the financial or
other information contained in the registration statement and/or final
prospectus furnished to LTCO by or on behalf of the Company or the omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; or (b) with respect to, caused by, or otherwise
arising out of any transaction contemplated by the Agreement or LTCO's
performing the services contemplated hereunder; provided, however, the Company
will not be liable under clause (b) hereof to the extent, and only to the
extent, that any loss, claim, damage, liability or expense is finally judicially
determined to have resulted primarily from LTCO's gross negligence or bad faith
in performing such services.
If the indemnification provided for herein is conclusively determined
(by an entry of final judgment by a court of competent jurisdiction and the
expiration of the time or denial of the right to appeal) to be unavailable or
insufficient to hold any Indemnified Party harmless in respect to any losses,
claims, damages, liabilities or expenses referred to therein, then the Company
shall contribute to the amounts paid or payable by such Indemnified Party in
such proportion as is appropriate and equitable under all circumstances taking
into account the relative benefits received by the Company on the one hand and
LTCO on the other, from the transaction or proposed transaction under the
Agreement or, if allocation on that basis is not permitted under applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and LTCO on the other, but also the
relative fault of the Company and LTCO; provided, however, in no event shall the
aggregate contribution of LTCO and/or any Indemnified Party be in excess of net
compensation actually received by LTCO and/or such Indemnified Party pursuant to
this Agreement.
The Company shall not settle or compromise or consent to the entry of
any judgment in or otherwise seek to terminate any pending or threatened action,
claim,
suit or proceeding in which any Indemnified Party is or could be a party and as
to which indemnification or contribution could have been sought by such
Indemnified Party hereunder (whether or not such Indemnified Party is a party
thereto), unless such consent or termination includes an express unconditional
release of such Indemnified Party, reasonably satisfactory in form and substance
to such Indemnified Party, from all losses, claims, damages, liabilities or
expenses arising out of such action, claim, suit or proceeding.
The foregoing indemnification and contribution provisions are not in
lieu of, but in addition to, any rights which any Indemnified Party may have at
common law hereunder or otherwise, and shall remain in full force and effect
following the expiration or termination of LTCO's engagement and shall be
binding on any successors or assigns of the Company and successors or assigns to
all or substantially all of the Company's business or assets.
2
Exhibit 1.1 to
Ladenburg Xxxxxxxx S-3
EXHIBIT C
JURISDICTION
The Company hereby irrevocably: (a) submits to the jurisdiction of any
court of the State of New York or any federal court sitting in the State of New
York for the purposes of any suit, action or other proceeding arising out of the
Agreement between the Company and LTCO which is brought by or against the
Company or LTCO; (b) agrees that all claims in respect of any suit, action or
proceeding may be heard and determined in any such court; and (c) to the extent
that the Company has acquired, or hereafter may acquire, any immunity from
jurisdiction of any such court or from any legal process therein, the Company
hereby waives, to the fullest extent permitted by law, such immunity.
The Company waives, and the Company agrees not to assert in any such
suit, action or proceeding, in each case, to the fullest extent permitted by
applicable law, any claim that: (a) the Company is not personally subject to the
jurisdiction of any such court; (b) the Company is immune from any legal process
(whether through service or notice, attachment prior to judgment, attachment in
the aid of execution, execution or otherwise) with respect to it or its
property; (c) any such suit, action or proceeding is brought in an inconvenient
forum; (d) the venue of any such suit, action or proceeding is improper; or (e)
this Agreement may not be enforced in or by any such court.
Any process against the Company in, or in connection with, any suit,
action or proceeding filed in the United States District Court for the Southern
District of New York or any other court of the State of New York, arising out of
or relating to this Agreement or any transaction or agreement contemplated
hereby, may be served on the Company personally, or by first class mail or
overnight courier (with the same effect as though served upon the Company
personally) addressed to the Company at the address set forth in the Agreement
between the Company and LTCO.
Nothing in these provisions shall affect any party's right to serve
process in any manner permitted by law or limit its rights to bring a proceeding
in the competent courts of any jurisdiction or jurisdictions or to enforce in
any lawful manner a judgment obtained in one jurisdiction in any other
jurisdiction.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of law
principles.
