VistaGen Therapeutics, Inc. Common Stock, par value $0.001 per share Underwriting Agreement
Exhibit 1.1
Common Stock, par value $0.001 per share
Xxxxxxx
Xxxxx & Company, L.L.C.
As
representative of the several Underwriters
named
in Schedule I hereto,
c/o
Xxxxxxx Xxxxx & Company, L.L.C.
000
Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Ladies
and Gentlemen:
VistaGen
Therapeutics, Inc., a Nevada corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”),
for whom Xxxxxxx Xxxxx & Company, L.L.C. is acting as
representative (the “Representative”
or “you”), an aggregate of 10,000,000 shares (the
“Firm
Securities”) and, at the election of the Underwriters,
up to 1,500,000 additional shares (the “Optional
Securities”) of common stock, par value $0.001 per
share (the “Common Stock”)
of the Company (the Firm Securities and the Optional Securities
that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the “Securities”).
The Company understands that the Underwriters propose to make a
public offering of their respective portions of the Securities as
soon as you deem advisable.
1. The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A
registration statement on Form S-3 (File No. 333-215671) (the
“Initial
Registration Statement”) in respect of the Securities
has been filed with the Securities and Exchange Commission (the
“Commission”);
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you and,
excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
included therein, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing
the size of the offering (a “Rule 462(b) Registration
Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Act”), which
became effective upon filing, no other document with respect to the
Initial Registration Statement or document incorporated by
reference therein has heretofore been filed, or transmitted for
filing, with the Commission and no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to the Company’s knowledge,
threatened by the Commission (the base prospectus filed as part of
the Initial Registration Statement, in the form in which it has
most recently been filed with the Commission on or prior to the
date of this Agreement relating to the Securities, is hereinafter
called the “Basic
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed
with the Commission pursuant to Rule 424(b) under the Act is
hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including any prospectus
supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be
part of the Initial Registration Statement, each as amended at the
time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration
Statement”; the Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time (as defined
in Section 1(c) hereof), is hereinafter called the
“Pricing
Prospectus”; the form of the final prospectus relating
to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act, is hereinafter called the “Prospectus”;
any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement,
any prospectus supplement relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act and any documents
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and incorporated therein, in each case after
the date of the Basic Prospectus, such Preliminary Prospectus or
the Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free
writing prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an
“Issuer
Free Writing Prospectus”; and any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified on Schedule II(a)
hereto, is hereinafter called a “General Use Issuer Free
Writing Prospectus”;
-1-
(b) No
order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representative
expressly for use therein, it being understood and agreed that the
only such information provided by any Underwriter through the
Representative is that identified as such in Section
9(b);
(c) For
the purposes of this Agreement, the “Applicable
Time” is 8:15 a.m. (New York City time) on the date of
this Agreement. The Pricing Prospectus, as supplemented by the
information listed in Schedule II(c) hereto and each General Use
Issuer Free Writing Prospectus, taken together (collectively, the
“Pricing
Disclosure Package”), including any prospectus wrapper
attached thereto, as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; and
each Issuer Free Writing Prospectus does not conflict with the
information contained in the Registration Statement, the Pricing
Disclosure Package or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein,
it being understood and agreed that the only such information
provided by any Underwriter through the Representative is that
identified as such in Section 9(b);
(d) The
documents incorporated by reference in the Pricing Disclosure
Package and the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representative expressly for use therein, it being understood and
agreed that the only such information provided by any Underwriter
through the Representative is that identified as such in Section
9(b); and no such documents were filed with the Commission since
the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(b)
hereto;
(e) The
Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representative
expressly for use therein, it being understood and agreed that the
only such information provided by any Underwriter through the
Representative is that identified as such in Section
9(b);
-2-
(f) The
financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement and the
Pricing Disclosure Package present fairly the financial position of
the Company and its consolidated subsidiaries at the dates
indicated, and the balance sheet, statement of operations,
stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified and such
financial statements and related schedules and notes thereto, have
been prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods involved.
The summary and selected financial data included in the Pricing
Disclosure Package present fairly the information shown therein at
the respective dates and for the respective periods specified and
have been presented on a basis consistent with the consolidated
financial statements set forth in the Pricing Disclosure Package
and other financial information. No other financial statements or
supporting schedules are required to be included in the
Registration Statement or the Pricing Disclosure Package. The other
financial and related statistical information included in the
Registration Statement and the Pricing Disclosure Package presents
fairly in all material respects the information included therein
and has been prepared on a basis consistent with that of the
financial statements that are included in the Pricing Disclosure
Package and the books and records of the respective entities
presented therein.
(g) The
statistical and market-related data included in the Registration
Statement, the Preliminary Prospectus and the Pricing Disclosure
Package, are based on or derived from sources that the Company
believes to be reliable and accurate;
(h)
Except as (i) described in the Registration Statement, the
Preliminary Prospectus and the Pricing Disclosure Package or (ii)
would not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect (as hereinafter defined), (A) the
Company and each of its subsidiaries have filed all United States
federal, state, local and foreign income tax returns required by
law to be filed through the date hereof and all taxes shown by such
returns or otherwise assessed, which are due and payable, have been
paid; and (B) there is no deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or assets
other than tax deficiencies that the Company or any of its
subsidiaries are contesting in good faith and as to which adequate
reserves have been established in accordance with
GAAP;
(i)
Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Pricing Disclosure Package any
material loss or interference with its business, direct or
contingent, including from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Disclosure
Package; and, since the respective dates as of which information is
given in the Registration Statement and the Pricing Disclosure
Package, there has not been (i) any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, taken as
a whole (other than changes pursuant to agreements or employee
benefit plans or in connection with the exercise of options or
warrants, in each case as described or referred to in the Pricing
Disclosure Package) or (ii) or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the properties, business, management, prospects,
operations, earnings, assets, liabilities or condition (financial
or otherwise) of the Company and its subsidiaries, taken as a whole
(a “Material Adverse
Effect”);
(j) The
Company and its subsidiaries have good and marketable title to all
real property owned by them and have good title to all other
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing Disclosure Package or such 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 its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company
and its subsidiaries;
-3-
(k)
Except as disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any Governmental Authority or any
court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, “Environmental
Laws”), owns or operates any real property
contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to
any claim relating to any Environmental Laws, which violation,
contamination, liability or claim would individually or in the
aggregate, have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim. Neither the Company nor any of its subsidiaries anticipates
incurring any material capital expenditures relating to compliance
with Environmental Laws;
(l) The
Company (i) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Nevada,
with corporate power and corporate authority to own its properties
and conduct its business as described in the Pricing Disclosure
Package and (ii) has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except in the case of clause (ii), where the failure
to be so qualified or in good standing would not have a Material
Adverse Effect; and each subsidiary of the Company (x) has been
duly incorporated or formed, as the case may be, and is validly
existing as a corporation or limited liability company, as
applicable, in good standing under the laws of its jurisdiction of
incorporation or formation, with the company power and authority to
own its properties and conduct its business as described in the
Pricing Disclosure Package and (y) has been duly qualified as a
foreign corporation or limited liability company for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
in the case of clause (y), where the failure to be so qualified or
in good standing would not have a Material Adverse
Effect;
(m)
This Agreement has been duly authorized, executed and delivered by
the Company;
(n) The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package under the caption
“Capitalization” and all of the issued shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable and conform to the
description of the Common Stock contained in the Pricing Disclosure
Package and the Prospectus and all of the issued shares of capital
stock of each subsidiary of the Company have been duly authorized
and validly issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims and there are no options, warrants
or other rights to acquire shares of capital stock of any
subsidiary of the Company; with respect to equity-based awards (the
“Awards”)
granted pursuant to the equity-based compensation plans of the
Company (the “Company Stock
Plans”), (i) each Award intended to qualify as an
“incentive stock option” under Section 422 of the
Internal Revenue Code so qualifies, (ii) each grant of an
Award was duly authorized no later than the date on which the grant
of such Award was by its terms to be effective (the
“Grant
Date”) by all necessary corporate action, including,
as applicable, approval by the board of directors of the Company
(or a duly constituted and authorized committee thereof) and any
required stockholder approval by the necessary number of votes or
written consents, and the award agreement governing such grant (if
any) was duly executed and delivered by each party thereto,
(iii) each such grant was made in accordance with the terms of
the Company Stock Plans, (iv) the per share exercise price of
each Award was equal to the fair market value of a share of Common
Stock, as determined in good faith by the Board of Directors on the
effective Grant Date and (v) each such grant was properly
accounted for in accordance with U.S. GAAP;
(o) The
Securities to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform
to the description of the Securities contained in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; and
the issuance of the Securities is not subject to any preemptive or
similar rights that have not been waived or complied
with;
-4-
(p) The
issue and sale of the Securities and the compliance by the Company
with its obligations under this Agreement and the consummation of
the transactions herein contemplated (A) will not conflict
with or result in a material breach or violation of any of the
terms or provisions of, or constitute a material default under, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (B) will
not violate any of the provisions of the Restated Articles of
Incorporation or the Amended and Restated Bylaws of the Company, or
the organizational documents of any subsidiary, or (C) will
not violate any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, and
(D) will not require any consent, approval, authorization,
order, registration or qualification of or with any court,
governmental agency or body or third party, except for (x) such
consents, approvals, authorizations, orders, registrations or
qualifications that have been obtained or made and are in full
force and effect, (y) the registration under the Act of the
Securities, the approval by the Financial Industry Regulatory
Authority (“FINRA”) of the
underwriting terms and arrangements, and (z) such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by
the Underwriters;
(q)
Neither the Company nor any of its subsidiaries is (A) in
violation of its Restated Articles of Incorporation, the Amended
and Restated Bylaws or other organizational documents or
(B) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except in the case of clause
(B), to the extent that such default would not have a Material
Adverse Effect;
(r) The
statements set forth in the Pricing Disclosure Package and
Prospectus under the caption “Description of our Capital
Stock,” insofar as they purport to constitute a summary of
the terms of the Common Stock, under the captions “Material
U.S. Federal Income Tax Considerations to Non-U.S. Holders”
and “Underwriting,” insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate and complete in all material respects;
(s)
Other than as set forth in the Pricing Disclosure Package, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries or, to the knowledge of the
Company, any officer or director of the Company is a party or of
which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries or any officer or director,
would individually or in the aggregate reasonably be expected to
have a Material Adverse Effect; and, to the Company’s
knowledge, no such proceedings are threatened by governmental
authorities or threatened by others;
(t) The
Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof, will
not be an “investment company,” as such term is defined
in the Investment Company Act of 1940, as amended (the
“Investment Company
Act”);
(u) At
the earliest time after the filing of the Initial Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the
Act) of the Securities, the Company was not and is not, as of the
date hereof, an “ineligible issuer,” as defined in Rule
405 under the Act;
(v) OUM
& Co. LLP, who have audited certain financial statements of the
Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company as required by the Act
and the rules and regulations of the Commission thereunder and the
Public Company Accounting Oversight Board (United States) (the
“PCAOB”);
-5-
(w) The
Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles. Except as disclosed in the
Registration Statement and the Pricing Disclosure Package, the
Company’s internal control over financial reporting is
effective and the Company is not aware of any “significant
deficiencies” or “material weaknesses” (each as
defined by the PCAOB) in its internal control over financial
reporting;
(x) The
Company’s board of directors meets the independence
requirements of, and has established an audit committee that meets
the independence requirements of, the rules and regulations of the
Commission and the NASDAQ Capital Market (“NASDAQ”);
(y)
Since the date of the latest audited financial statements included
or incorporated by reference in the Pricing Disclosure Package,
there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s
internal control over financial reporting;
(z) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made
known to the Company’s principal executive officer and
principal financial officer by others within those entities; and
such disclosure controls and procedures are effective;
(aa)
Except to the extent as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, the Company or
its subsidiaries owns, possesses, or can acquire on reasonable
terms, all Intellectual Property necessary for the conduct of the
Company’s or any subsidiary’s business as now conducted
or as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus to be conducted, and there
are no unreleased liens or security interests which have been filed
against any of the patents owned by the Company or its
subsidiaries. Furthermore, (A) to the knowledge of the
Company, there is no infringement, misappropriation or violation by
third parties of any such Intellectual Property; (B) there is no
pending or, to the knowledge of the Company, threatened, action,
suit, proceeding or claim by others challenging the Company’s
or any subsidiary’s rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; (C) the Intellectual
Property owned by the Company or its subsidiaries, and to the
knowledge of the Company, the Intellectual Property licensed to the
Company or its subsidiaries, has not been adjudged invalid or
unenforceable, in whole or in part, and there is no pending or, to
the knowledge of the Company, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company is not aware of any facts
which would form a reasonable basis for any such claim; (D) there
is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or claim by others that the Company or any
of its subsidiaries infringes, misappropriates or otherwise
violates any Intellectual Property or other proprietary rights of
others, neither the Company nor any of its subsidiaries has
received any written notice of such claim and the Company is
unaware of any other fact which would form a reasonable basis for
any such claim; (E) the Company and its subsidiaries have complied
with the terms of each agreement pursuant to which Intellectual
Property has been licensed to the Company or its subsidiaries, and
all such agreements are in full force and effect; (F) the drug
candidates described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus as under development by the
Company or its subsidiaries fall within the scope of the claims of
one or more patents or applications relating to the drug candidate
or its intended use owned by, or exclusively licensed to, the
Company or its subsidiaries; and (G) to the Company’s
knowledge, no employee of the Company or any of its subsidiaries is
in or has ever been in violation of any term of any employment
contract, patent disclosure agreement, invention assignment
agreement, non-competition agreement, non-solicitation agreement,
nondisclosure agreement or any restrictive covenant to or with a
former employer where the basis of such violation relates to such
employee’s employment with the Company or any of its
subsidiaries or actions undertaken by the employee while employed
with the Company or any of its subsidiaries. “Intellectual
Property” shall mean all patents, patent applications,
trade and service marks, trade and service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets,
domain names, technology, know-how and other intellectual
property;
-6-
(bb)
There are no off-balance sheet arrangements (as defined in
Regulation S-K Item 303(a)(4)(ii)) that may have a
material current or future effect on the Company’s financial
condition, changes in financial condition, results of operations,
liquidity, capital expenditures or capital resources;
(cc)
The Company and each of its subsidiaries have complied, and are
presently in compliance, in all material respects, with its privacy
and security policies, and with all obligations, laws and
regulations regarding the collection, use, transfer, storage,
protection, disposal and/or disclosure of personally identifiable
information and/or any other information collected from or provided
by third parties. The Company and its subsidiaries have taken
commercially reasonable steps to protect the information technology
systems and data used in connection with the operation of the
Company and/or its subsidiaries. The Company and its subsidiaries
have used reasonable efforts to establish, and have established,
commercially reasonable disaster recovery and security plans,
procedures and facilities for the business, including, without
limitation, for the information technology systems and data held or
used by or for the Company and/or any of its subsidiaries. Except
as set forth in the Pricing Disclosure Package and the Prospectus,
there has been no security breach or attack or other compromise of
or relating to any such information technology system or data which
would reasonably be expected to have a Material Adverse
Effect;
(dd)
The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as are, in the Company’s reasonable
judgment, prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; and neither
the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse
Effect.
(ee)
There are no contracts or other documents which are required to be
described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or to be filed as an exhibit to the
Registration Statement which have not been described or filed as
required;
(ff)
Except as disclosed in the Pricing Disclosure Package, there are no
related party transactions that would be required to be disclosed
therein by Item 404 of Regulation S-K promulgated under the
Act and any such related party transactions described therein are
accurately described in all material respects;
(gg)
Except (i) as set forth or described in the Pricing Disclosure
Package, none of the following events has occurred or exists: (A) a
failure to fulfill the obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), and
the regulations and published interpretations thereunder with
respect to a Plan, determined without regard to any waiver of such
obligations or extension of any amortization period; (B) an audit
or investigation by the Internal Revenue Service, the U.S.
Department of Labor, the Pension Benefit Guaranty Corporation or
any other federal or state governmental agency or any foreign
regulatory agency with respect to the employment or compensation of
employees by any of the Company or any of its subsidiaries; or (C)
any breach of any contractual obligation, or any violation of law
or applicable qualification standards, with respect to the
employment or compensation of employees by the Company or any of
its subsidiaries. Except (i) as set forth or described in the
Pricing Disclosure Package or (ii) as would not have, individually
or in the aggregate, a Material Adverse Effect, none of the
following events has occurred or is reasonably likely to occur: (A)
an increase in the aggregate amount of contributions required to be
made to all Plans in the current fiscal year of the Company and its
subsidiaries compared to the amount of such contributions made in
the most recently completed fiscal year of the Company and its
subsidiaries; (B) an increase in the “accumulated
post-retirement benefit obligations” (within the meaning of
Statement of Financial Accounting Standards 106) of the Company and
its subsidiaries compared to the amount of such obligations in the
most recently completed fiscal year of the Company and its
subsidiaries; (C) any event or condition giving rise to a liability
under Title IV of ERISA; or (D) the filing of a material claim by
one or more employees or former employees of the Company or any of
its subsidiaries related to their employment. For purposes of this
paragraph, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) with respect to which the Company
or any of its subsidiaries may have any liability;
-7-
(hh)
The operations of the Company and its subsidiaries are and have
been conducted at all times in material compliance with ERISA, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Employee Benefit
Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator to which the Company or any of its subsidiaries is a
party with respect to the Employee Benefit Laws is pending or, to
the knowledge of the Company, threatened;
(ii)
There are no contracts, agreements or understandings between the
Company or its subsidiaries and any person that would give rise to
a valid claim against the Company or any Underwriter for a
brokerage commission, finder’s fee or other like payment in
connection with this offering;
(jj)
The holders of outstanding shares of the Company’s capital
stock are not entitled to preemptive or other rights to subscribe
for the Securities that have not been complied with or otherwise
effectively waived; none of the outstanding shares of Common Stock
were issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase
securities of the Company; there are no persons with registration
or other similar rights to have securities of the Company
registered under the Act other than as disclosed in the Pricing
Disclosure Package; and there are no Persons with registration or
similar rights that would require any securities of the Company to
be included in the Registration Statement or in the offering
contemplated hereby; there are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described in
the Pricing Disclosure Package; and the description of the
Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder,
included in the Pricing Disclosure Package fairly presents the
information required to be shown with respect to such plans,
arrangements, options and rights;
(kk)
(i) Neither the Company nor any of its subsidiaries, nor any or
their directors, officers or employees, nor, to the Company’s
knowledge, any agent, affiliate or representative of the Company or
its subsidiaries, is an individual or entity that is, or is owned
or controlled by an individual or entity that is (A) the subject of
any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, Her Majesty’s
Treasury or other relevant sanctions authority (collectively,
“Sanctions”),
nor (B) located, organized or resident in a country or territory
that is the subject of Sanctions (including, without limitation,
Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan, Syria or the
Crimean region of Ukraine); (ii) neither the Company nor any of its
subsidiaries will, directly or indirectly, use the proceeds of the
offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other
individual or entity (A) to fund or facilitate any activities or
business of or with any individual or entity or in any country or
territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or (B) in any other manner that will result
in a violation of Sanctions by any individual or entity (including
any individual or entity participating in the offering, whether as
underwriter, advisor, investor or otherwise); (iii) for the past
five years, neither the Company nor any of its subsidiaries has
knowingly engaged in, and is not now knowingly engaged in, any
dealings or transactions with any individual or entity, or in any
country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions.;
(ll)
The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable federal,
state, international, foreign or other laws, regulations or
government guidance regarding financial record-keeping and
reporting requirements, including, without limitation, Title
18 US. Code section 1956 and 1957, the Bank Secrecy Act, as amended
by Title III of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (USA PATRIOT Act), the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the applicable money laundering
statutes of jurisdictions where the Company and the subsidiaries
conduct business, the applicable rules and regulations thereunder,
and international anti-money laundering principles or procedures by
an intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States
is a member and with which designation the United States
representative to the group or organization continues to concur,
all as amended, and any Executive order, directive or regulation
pursuant to the authority of any of the foregoing, or any orders or
licenses issued thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (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 of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened;
-8-
(mm)
Neither the Company nor any of its subsidiaries, nor any director
or officer thereof, nor, to the Company’s knowledge, any
agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such Persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA and the Company, its subsidiaries and its affiliates have
conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith;
(nn)
The Company and, as applicable, each of its subsidiaries holds all
material, and is operating in material compliance with, all
certificates, registrations, franchises, licenses, permits,
clearances, approvals, exemptions, and other authorizations issued
by all applicable authorities, including the United States Food and
Drug Administration (“FDA”), and any
state, federal or foreign regulatory agencies or bodies required
for the conduct of its business as currently conducted
(collectively, “Permits”), and
all such Permits are in full force and effect; the Company and each
of its subsidiaries have fulfilled and performed all of their
material obligations with respect to the Permits, and, to the
Company’s knowledge, no event has occurred which allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
the rights of the holder of any Permit; to the Company’s
knowledge, all applications, notifications, submissions,
information, claims, reports and statistics, and other data and
conclusions derived therefrom, utilized as the basis for any and
all requests for a Permit from the FDA or any other Governmental
Authority relating to the Company and its subsidiaries, their
business and the products of the Company, when submitted the FDA or
to such other Governmental Authority, were true, complete and
correct in all material respects as of the date of submission and
any necessary or required updates, changes, corrections or
modification to such applications, submissions, information and
data have been submitted to the FDA or such other Governmental
Authority;
(oo)
The nonclinical tests, clinical trials and other studies
(collectively, “studies”) that
are described in, or the results of which are referred to in, the
Registration Statement, the Pricing Disclosure Package or the
Prospectus were and, if still pending, are being conducted in all
material respects in accordance with the protocols, procedures and
controls designed and approved for such studies and with standard
medical and scientific research procedures; each description of the
results of such studies is accurate and complete in all material
respects and fairly presents the data derived from such studies,
and the Company and its subsidiaries have no knowledge of any other
studies the results of which are inconsistent with, or otherwise
call into question, the results described or referred to in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus; the Company and its subsidiaries have made all such
filings and obtained all such approvals as may be required by the
FDA or from any other U.S. or foreign government or drug regulatory
agency, or health care facility Institutional Review Board
(collectively, the “Regulatory
Agencies”); the Company and its subsidiaries have not
received any notice of, or correspondence from, any Regulatory
Agency requiring the termination or suspension of any clinical
trials that are described or referred to in the Registration
Statement, the Pricing Disclosure Package or the Prospectus, other
than any suspension that was subsequently lifted prior to January
1, 2018; and the Company and its subsidiaries have operated and
currently are in compliance in all material respects with all
applicable rules and regulations of the Regulatory
Agencies;
(pp)
The Company and each of its subsidiaries and its and their
respective directors and officers and, to the Company’s
knowledge, its employees and agents (while acting in such capacity)
are, and at all times have been, in material compliance with, all
healthcare laws applicable to the Company and each of its
subsidiaries or any of its products or activities, including, but
not limited to, the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
§§ 301 et seq.), as amended, and the Controlled
Substances Act (21 U.S.C. Section 801 et seq.), as amended, the
regulations promulgated pursuant to such laws, and any other state
or federal law, accreditation standards, regulation, memorandum,
opinion letter, or other issuance which imposes requirements on the
manufacturing, development, testing, labeling, marketing or
distribution of the Company’s product candidates,
recordkeeping, quality, safety, privacy, security, licensure,
accreditation or any other aspect of producing the Company’s
product candidates(collectively, “Healthcare
Laws”). The Company has not received any notification,
correspondence or any other written or oral communication,
including notification of any pending or threatened claim, suit,
proceeding, hearing, enforcement, investigation, arbitration or
other action (“Action”) from
any court, arbitrator, third-party, or governmental or regulatory
authority, including, without limitation, the FDA, the Drug
Enforcement Administration (“DEA”), or the
U.S. Department of Health and Human Services Office of Inspector
General, of potential or actual non-compliance by, or liability of,
the Company or any of its subsidiaries under any Healthcare Laws,
and to the knowledge of the Company, no such Action is
threatened;
-9-
(qq)
The Company is in compliance with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations of the Commission thereunder.
(rr)
The interactive data in eXtensbile Business Reporting Language
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus fairly presents the
information called for in all material respects and has been
prepared in accordance with the Commission’s rules and
guidelines applicable thereto.
(ss)
The Company, or any of its subsidiaries, is not a party to and does
not have any ongoing reporting obligations pursuant to any
corporate integrity agreements, monitoring agreements, deferred
prosecution agreements, consent decrees, settlement orders, or
similar agreements with or imposed by any governmental or
regulatory authority;
(tt)
Neither the Company, any of its subsidiaries, nor any of their
respective employees, officers or directors has been excluded,
suspended or debarred from participation in any U.S. state or
federal health care program or human clinical research or is
subject to a governmental inquiry, claim, investigation,
proceeding, or other any other Action that could reasonably be
expected to result in debarment, suspension, or exclusion;
and
(uu) No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries, on the other, that is required
by the Act to be described in the Registration Statement and the
Prospectus and that is not so described in such documents and in
the Pricing Disclosure Package. As of the date of the initial
filing of the Registration Statement and through the date of this
Agreement, there were no outstanding personal loans made, directly
or indirectly, by the Company to any director or executive officer
of the Company.
(vv)
(i) Except as described in the Pricing Disclosure Package or the
Registration Statement, there has been no security breach or
incident, unauthorized access or disclosure, or other compromise of
or relating to the Company’s or its subsidiaries’
information technology and computer systems, networks, hardware,
software, data and databases (including the data and information of
their respective customers, employees, suppliers, vendors and any
third-party data maintained, processed or stored by the Company and
its subsidiaries, and any such data processed or stored by third
parties on behalf of the Company and its subsidiaries), equipment
or technology (collectively, “IT Systems and
Data”), except for those that have been remedied
without material cost or liability; (ii) neither the Company nor
its subsidiaries have been notified of, and have no knowledge of
any event or condition that would reasonably be expected to result
in, any security breach or incident, unauthorized access or
disclosure or other compromise to their IT Systems and Data; and
(iii) the Company and its subsidiaries, taken as a whole, have
implemented appropriate controls, policies, procedures and
technological safeguards to maintain and protect the integrity,
continuous operation, redundancy and security of their IT Systems
and Data reasonably consistent with industry standards and
practices, or as required by applicable regulatory standards. The
Company and its subsidiaries are presently in material compliance
with all applicable laws or statutes and all judgments, orders,
rules and regulations of any Governmental Entity, internal policies
and contractual obligations relating to the privacy and security of
IT Systems and Data and to the protection of such IT Systems and
Data from unauthorized use, access, misappropriation or
modification.
(ww)
except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company has not sold,
issued or distributed any shares of Common Stock during the six
month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the Act,
other than shares issued pursuant to Company Stock
Plans.
-10-
(xx)
There are no debt securities or preferred stock issued, or
guaranteed by, the Company or any of its subsidiaries that are
rated by a “nationally recognized statistical rating
organization,” as such term is defined in Section 3(a)(62) of
the Exchange Act.
2.
Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price per share of $0.93,
the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to
purchase Optional Securities as provided below, the Company agrees
to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional
Securities as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined
by multiplying such number of Optional Securities by a fraction,
the numerator of which is the maximum number of Optional Securities
which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Securities
that all of the Underwriters are entitled to purchase
hereunder.
The
Company hereby grants to the Underwriters the right to purchase at
their election up to 1,500,000 Optional Securities, at the purchase
price per share set forth in the paragraph above, for the sole
purpose of covering sales of shares in excess of the number of Firm
Securities, provided that the purchase price per Optional Share
shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm
Securities but not payable on the Optional Securities. Any such
election to purchase Optional Securities may be exercised only by
written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Securities to be purchased and the
date on which such Optional Securities are to be delivered, as
determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the
Company otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice.
3. Upon
the authorization by you of the release of the Firm Securities, the
several Underwriters propose to offer the Firm Securities for sale
upon the terms and conditions set forth in the
Prospectus.
4. (a)
The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx Xxxxx & Company, L.L.C. may
request upon at least forty-eight hours’ prior notice to the
Company shall be delivered by or on behalf of the Company to the
Representative, through the facilities of the Depository Trust
Company (“DTC”), for the
account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to
the Xxxxxxx Xxxxx & Company, L.L.C. at least forty-eight
hours in advance. The time and date of such delivery and payment
shall be, with respect to the Firm Securities, 9:30 a.m., New York
City time, on February 28, 2019 or such other time and date as
Xxxxxxx Xxxxx & Company, L.L.C. and the Company may agree upon
in writing, and, with respect to the Optional Securities, 9:30
a.m., New York City time, on the date specified by Xxxxxxx Xxxxx
& Company, L.L.C. in the written notice given by Xxxxxxx Xxxxx
& Company, L.L.C. of the Underwriters’ election to
purchase such Optional Securities, or such other time and date as
Xxxxxxx Xxxxx & Company, L.L.C. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Securities
is herein called the “First Time of
Delivery”, such time and date for delivery of the
Optional Securities, if not the First Time of Delivery, is herein
called the “Second Time of
Delivery”, and each such time and date for delivery is
herein called a “Time of
Delivery”.
-11-
(b) The
documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including
the cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 8(l) hereof,
will be delivered at the offices of Xxxxxx & Xxxxxxx LLP, at
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (the
“Closing
Location”), and the Securities will be delivered at
the office of DTC (or its designated custodian), all at such Time
of Delivery. A meeting will be held at the Closing Location at 4:00
p.m., New York City time, on the New York Business Day immediately
preceding such Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of this Agreement or such
earlier time as may be required under the Act; to make no further
amendment or any supplement to the Registration Statement, the
Basic Prospectus or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to
furnish you with copies thereof; to file promptly all other
material required to be filed by the Company with the Commission
pursuant to Rule 433(d) under the Act, within the time required by
such rule; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Securities; to advise
you, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other
prospectus in respect of the Securities, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order;
(b)
Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or subject itself
to taxation in any jurisdiction in which it is not otherwise
subject to taxation on the date hereof;
(c)
Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act)
is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify you and upon your request to
file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a
prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Act;
-12-
(d) To
make generally available to its securityholders as soon as
practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158);
(e)
During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus
(the “Lock-Up
Period”), not to (i) offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or
otherwise transfer or dispose of, directly or indirectly, or file
with the Commission a registration statement under the Act relating
to, any securities of the Company that are substantially similar to
the Securities, including but not limited to any options or
warrants to purchase shares of Common Stock or any securities that
are convertible into or exchangeable for, or that represent the
right to receive, Common Stock, or any such substantially similar
securities, or publicly disclose the intention to make any offer,
sale, pledge, disposition or filing or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Common Stock, or any
such other securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise,
without the prior written consent of the Representative (other than
(A) the Securities to be sold to the Underwriters hereunder,
(B) the issuance of options, warrants or other equity awards
to acquire shares of Common Stock granted pursuant to the Company
Stock Plans that are described in the Prospectus, as such plans may
be amended, (C) the issuance of shares of Common Stock upon
the exercise of any such options, warrants or other equity awards
to acquire shares of Common Stock, (D) shares of Common Stock
issued upon exercise of outstanding warrants, (E) shares of Common
Stock issuable upon conversion of outstanding shares of the
Company’s Series B 10% Convertible Preferred Stock (the
“Series B
Preferred”), and (F) in connection with any conversion
of outstanding shares of Series B Preferred, shares of Common Stock
issuable as payment of any accrued, but unpaid dividends on the
shares of Series B Preferred to be converted;
(f) If
the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of
filing either pay the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the
Act;
(g) To
use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Pricing
Prospectus under the caption “Use of
Proceeds”;
(h) To
use its best efforts to list, subject to notice of issuance, the
Securities on the NASDAQ; and
(i)
Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the
Company’s trademarks, servicemarks and corporate logo for use
on the website, if any, operated by such Underwriter for the
purpose of facilitating the on-line offering of the Securities (the
“License”);
provided, however, that the
License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or
transferred.
(j) The
Company represents and agrees that, unless it obtains the prior
written consent of the Representative, and each Underwriter
severally represents and agrees that, unless it obtains the prior
written consent of the Company and the Representative, it has not
made and will not make any offer relating to the Securities that
would constitute an issuer free writing prospectus or that would
otherwise constitute a free writing prospectus required to be filed
with the Commission; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the
free writing prospectuses included in Schedule II. Any such free
writing prospectus consented to by the Company and the
Representative is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company
represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an issuer free writing
prospectus, and has complied and will comply with the requirements
of Rules 164 and 433 of the Rules and Regulations applicable to any
Permitted Free Writing Prospectus. The Company represents that it
has satisfied and agrees that it will satisfy the conditions in
Rule 433 to avoid a requirement to file with the Commission any
electronic road show.
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6.(a)
The Company represents and agrees that, without the prior consent
of the Representative, it has not made and will not make any offer
relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act,
other than any such free writing prospectus the use of which has
been consented to by the Representative and which is listed on
Schedule II(a) hereto; each Underwriter represents and agrees that,
without the prior consent of the Company and the Representative, it
has not made and will not make any offer relating to the Securities
that would constitute a free writing prospectus, other than any
such free writing prospectus the use of which has been consented to
by the Company and the Representative is listed on Schedule II(a)
hereto;
(b) The
Company has complied and will comply with the requirements of Rule
433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where
required and legending; and
(c) The
Company agrees that if at any time following issuance of an Issuer
Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will give prompt
notice thereof to the Representative and, if requested by the
Representative, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus
made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the
Representative expressly for use therein, it being understood and
agreed that the only such information provided by any Underwriter
through the Representative is that identified as such in Section
9(b).
7. The
Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Securities
under the Act and all other expenses in connection with the
preparation, printing, reproduction and filing of the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
Agreement, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky survey (such fees not to exceed
$5,000); (iv) all fees and expenses in connection with listing
the Securities on the NASDAQ; (v) if applicable, the filing
fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required review by FINRA of
the terms of the sale of the Securities (such fees not to exceed
$25,000); (vi) if applicable, the costs incidental to the
issuance of the Securities, including the costs of preparation,
printing and distribution of one or more versions of the
Preliminary Prospectus and the Prospectus for distribution in
Canada, in the form of a Canadian “wrapper” (including
related fees and disbursements of Canadian counsel to the
Underwriters; (vii) the cost of preparing stock certificates, if
applicable; (viii) the cost and charges of any transfer agent
or registrar; (ix) the costs and expenses of the Company relating
to investor presentations on any “road show” undertaken
in connection with the marketing of the Securities, including
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of aircraft and other
transportation chartered in connection with the road
show; and
(x) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically
provided for in this Section 7. It is understood, however, that,
except as provided in this Section 7, Sections 9 and 12 hereof and
the engagement letter dated October 18, 2018, between Xxxxxxx Xxxxx
& Company, L.L.C. and the Company, the Underwriters will pay
all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them,
and any advertising expenses connected with any offers they may
make.
-14-
8. The
obligations of the Underwriters hereunder, as to the Securities to
be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and
as of such Time of Delivery, true and correct, the condition that
the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; all material
required to be filed by the Company pursuant to Rule 433(d) under
the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; if
the Company has elected to rely upon Rule 462(b) under the Act, the
Rule 462(b) Registration Statement shall have become effective by
10:00 p.m., Washington, D.C. time, on the date of this Agreement;
no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened
by the Commission; no stop order suspending or preventing the use
of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b)
Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time
of Delivery, in form and substance satisfactory to you, with
respect to the matters you may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such
matters;
(c) (i)
Disclosure Law Group, a Professional Corporation, counsel for the
Company, shall have furnished to you their written opinion and a
negative assurance letter and (ii) Capital Technology Law Group,
intellectual property counsel to the Company, shall have furnished
to you his written opinion regarding intellectual property matters,
dated such Time of Delivery, each in form and substance
satisfactory to you;
(d) On
the date of the Prospectus at a time prior to the execution of this
Agreement, on the effective date of any post-effective amendment to
the Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, OUM & Co. LLP
shall have furnished to you a comfort letter or letters, dated the
respective dates of delivery thereof, in form and substance
satisfactory to the Representative, in form and substance
satisfactory to you;
(e)(i)
Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Disclosure
Package any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Disclosure Package, and (ii) since
the respective dates as of which information is given in the
Pricing Disclosure Package there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the properties, business,
management, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Pricing Disclosure Package, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities
being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(f) On
or after the Applicable Time (i) no downgrading shall have
occurred in the rating accorded the Company’s securities by
any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for
purposes of Section
3(a)(62) of the Exchange Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of
the Company’s debt securities;
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(g) On
or after the Applicable Time there shall not have occurred any of
the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or
on the NASDAQ; (ii) a suspension or material limitation in
trading in the Company’s securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by
either Federal or New York authorities or a material disruption in
commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause
(iv) or (v) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Securities being delivered at such Time of Delivery on the
terms and in the manner contemplated in the
Prospectus;
(h) The
Securities to be sold at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the NASDAQ;
(i) The
Company shall have obtained and delivered to the Underwriters
executed copies of a lock-up letter from the persons listed on
Schedule III hereto, substantially to the effect set forth in Annex
I hereof in form and substance satisfactory to the
Representative;
(j) The
Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of this Agreement;
(k) The
Company shall have furnished or caused to be furnished to you at
such Time of Delivery a certificate of the Chief Executive Officer
and the Chief Financial Officer of the Company satisfactory to you
as to the accuracy of the representations and warranties of the
Company herein at and as of such time, as to the performance by the
Company of all of its obligations hereunder to be performed at or
prior to such time, as to the matters set forth in subsections (a),
(e) and (h) of this Section 8 and as to such other
matters as you may reasonably request.
(l) The
Company will furnish the Representative with any additional
opinions, certificates, letters and documents as the Representative
reasonably requests and conformed copies of documents delivered
pursuant to this Section 8. The Representative may in its sole
discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters
hereunder.
9.(a)
The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, or any amendment or supplement thereto,
any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule
433(d) under the Act, or any road show as defined in Rule 433(h)
under the Act (a “road show”),
or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Disclosure Package or the
Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representative expressly for use therein, it being
understood and agreed that the only such information provided by
any Underwriter through the Representative is that identified as
such in Section 9(b).
-16-
(b)
Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or any road show or (ii) arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Disclosure Package or the Prospectus or any such amendment
or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representative
expressly for use therein, it being understood and agreed that the
only such information provided by any Underwriter through the
Representative is the information contained in the fourth and the
eleventh through the fifteenth paragraphs under the caption
“Underwriting” in the Preliminary Prospectus and the
Prospectus; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c)
Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party under such subsection, except to the extent that
the indemnifying party has been materially prejudiced by such
failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that if, in the sole
judgment of the Representative, it is advisable for the
Underwriters to be represented as a group by separate counsel, the
Representative shall have the right to employ a single counsel (in
addition to local counsel) to represent the Representative and all
Underwriters that may be subject to liability arising from any
claim in respect of which indemnity may be sought by the
Underwriters under subsection (a) above in which event the
reasonable fees and expenses of such separate counsel shall be
borne by the indemnifying party or parties and reimbursed to the
Underwriters as incurred. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party. Notwithstanding the foregoing, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
pursuant to this Section 9(c), such indemnifying party agrees that
it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date
of such settlement.
-17-
(d) If
the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth
in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or
the Underwriters on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not
joint.
(e) The
obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act
and each affiliate of any Underwriter within the meaning of Rule
405 under the Act, including, without limitation, the officers,
directors, partners and members of each such Underwriter and its
broker-dealer affiliates; and the obligations of the Underwriters
under this Section 9 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls
the Company within the meaning of the Act.
10.(a)
If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such
terms. In the event that, within the respective prescribed periods,
you notify the Company that you have so arranged for the purchase
of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company
shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term “Underwriter”
as used in this Agreement shall include any person substituted
under this Section 10 with like effect as if such person had
originally been a party to this Agreement with respect to such
Securities.
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(b) If,
after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate
number of such Securities which remains unpurchased does not exceed
one eleventh of the aggregate number of all the Securities to be
purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the
number of shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Securities which such Underwriter agreed to
purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If,
after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate
number of such Securities which remains unpurchased exceeds one
eleventh of the aggregate number of all the Securities to be
purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement (or,
with respect to the Second Time of Delivery, the obligation of the
Underwriters to purchase and of the Company to sell the Optional
Securities) shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for
its default.
11. The
respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement
as to the results thereof) made by or on behalf of any Underwriter
or any controlling person of any Underwriter, or the Company, or
any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the
Securities.
12. If
this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any
defaulting Underwriter; but, if for any other reason, any
Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters
through you for all out of pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no
further liability to any Underwriter except as provided in Sections
7 and 9 hereof.
13. In
all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by you.
All
statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by
mail or facsimile transmission to Xxxxxxx Xxxxx & Company,
L.L.C., 000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention:
General Counsel, Facsimile: (000) 000-0000; and if to the Company
shall be delivered or sent by mail or facsimile transmission to the
address of the Company set forth on the cover of the Registration
Statement, Attention: Xxxxx Xxxxx, Chief Executive Officer,
Facsimile: 000-000-0000 (with copies to those parties specified
thereon). Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In
accordance with the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)), the
underwriters are required to obtain, verify and record information
that identifies their respective clients, including the Company,
which information may include the name and address of their
respective clients, as well as other information that will allow
the underwriters to properly identify their respective
clients.
-19-
14.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of
the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. No purchaser of any
of the Securities from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15.
Time shall be of the essence of this Agreement. As used herein, the
term “business day” shall mean any day when the
Commission’s office in Washington, D.C. is open for business
and “New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
16. The
Company acknowledges and agrees that (i) the purchase and sale
of the Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on
the one hand, and the several Underwriters, on the other,
(ii) in connection therewith and with the process leading to
such transaction each Underwriter is acting solely as a principal
and not the agent or fiduciary of the Company, (iii) no
Underwriter has assumed an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the
Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar
duty to the Company, in connection with such transaction or the
process leading thereto.
17. The
Company acknowledges that the Underwriters’ research analysts
and research departments are required to be independent from their
respective investment banking divisions and are subject to certain
regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make
statements or investment recommendations and/or publish research
reports with respect to the Company and/or the offering that differ
from the views of their respective investment banking divisions.
The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may
arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company
by such Underwriters’ investment banking divisions. The
Company acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to
applicable securities laws, may effect transactions for its own
account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be
the subject of the transactions contemplated by this
Agreement.
18.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter
hereof.
19.
THIS AGREEMENT AND ANY MATTERS
RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION
OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK.
The Company agrees that any suit or
proceeding arising in respect of this agreement or your engagement
will be tried exclusively in the U.S. District Court for the
Southern District of New York or, if that court does not have
subject matter jurisdiction, in any state court located in The City
and County of New York and the Company agrees to submit to the
jurisdiction of, and to venue in, such courts.
20. The
Company and each of the Underwriters hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating
to this Agreement or the transactions contemplated
hereby.
-20-
21.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same instrument.
22.
Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state
income tax treatment and tax structure of the potential transaction
and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company relating to that treatment and
structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and
tax structure shall remain confidential (and the foregoing sentence
shall not apply) to the extent necessary to enable any person to
comply with securities laws. For this purpose, “tax
structure” is limited to any facts that may be relevant to
that treatment.
23. If
any term or other provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or
enforceability of the other provisions of this Agreement shall not
be affected thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as
similar as possible to the provision at issue.
24.
Except as otherwise expressly provided herein, the provisions of
this Agreement may be amended or waived at any time only by the
written agreement of the parties hereto. Any waiver, permit,
consent or approval of any kind or character on the part of any
such holders of any provision or condition of this Agreement must
be made in writing and shall be effective only to the extent
specifically set forth in writing. The failure of any party hereto
to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to
affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held
to constitute a waiver of any other or subsequent
breach.
[Signature page follows]
-21-
If the
foregoing is in accordance with your understanding, please sign and
return to us, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the
Underwriters and the Company.
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Very
truly yours,
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By:
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/s/ Xxxxx
Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Chief Executive Officer
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Accepted
as of the date hereof:
XXXXXXX XXXXX & COMPANY, L.L.C.
Acting
severally on behalf of itself and the several Underwriters named in
Schedule I hereto
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XXXXXXX XXXXX & COMPANY, L.L.C.
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/s/ Xxxxx
Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
Managing Director, Partner
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&
Head of Healthcare ECM
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-22-
SCHEDULE I
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Underwriter
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Total
Number of Firm Securities to be Purchased
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Number of
Optional Securities to be Purchased if Maximum Option
Exercised
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Xxxxxxx Xxxxx &
Company, L.L.C.
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10,000,000
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1,500,000
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Total
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10,000,000
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1,500,000
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-23-
SCHEDULE II
(a)
General Use Issuer Free Writing Prospectuses:
[None]
(b)
Additional Documents Incorporated by Reference:
[None]
(c)
Information other than the Pricing Prospectus that comprise the
Pricing Disclosure Package:
The
initial public offering price per share for the Securities is
$1.00
The
number of Securities purchased by the Underwriters is
10,000,000.
-24-
SCHEDULE III
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Name
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Xxx X.
Xxxx
Xxxxx
X. Xxxxx
Xxx
Xxxxxxxxxx
Xxxxx
Xxx
H.
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx
Xxxx X.
Xxxxx
Xxxxxxx
X. Xxxxxx
Xxxx X.
XxXxxxxxxx
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-25-
Annex I
[Form
of Lock-Up Letter]
February
___, 2019
Xxxxxxx
Xxxxx & Company, L.L.C.
As
representative of the underwriters named
in
Schedule I to the Underwriting Agreement referred to
below
c/o
Xxxxxxx Xxxxx & Company, L.L.C.
000
Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Dear
Sirs:
As an
inducement to the underwriters (the “Underwriters”)
to execute an underwriting agreement (the “Underwriting
Agreement”) providing for a public offering (the
“Offering”)
of common stock (the “Common
Stock”), of VistaGen Therapeutics, Inc., a Nevada
corporation (the “Company”),
the undersigned hereby agrees that without, in each case, the prior
written consent of Xxxxxxx Xxxxx & Company, L.L.C. (the
“Representative”)
during the period specified in the second succeeding paragraph (the
“Lock-Up
Period”), the undersigned (or any affiliate of the
undersigned or any person in privity with the undersigned or any
affiliate of the undersigned) will not: (1) offer, pledge, announce
the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, make any short sale
or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into,
exercisable or exchangeable for or that represent the right to
receive Common Stock (including without limitation, Common Stock
which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and
Exchange Commission (the “SEC”)
and securities which may be issued upon exercise of a stock option
or warrant), whether now owned or hereafter acquired (the
“Undersigned’s
Securities”); (2) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Undersigned’s Securities,
whether any such transaction described in clause (1) above or this
clause (2) is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise; (3) make any demand for or
exercise any right with respect to, the registration of any Common
Stock or any security convertible into or exercisable or
exchangeable for Common Stock; or (4) publicly disclose the
intention to do any of the foregoing.
The
undersigned agrees that the foregoing restrictions preclude the
undersigned from engaging in any hedging or other transaction that
is designed to or that reasonably could be expected to lead to or
result in a sale or disposition of the Undersigned’s
Securities even if such Undersigned’s Securities would be
disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any
short sale or any purchase, sale or grant of any right (including
without limitation any put or call option) with respect to any of
the Undersigned’s Securities or with respect to any security
that includes, relates to, or derives any significant part of its
value from such Undersigned’s Securities.
The
Lock-Up Period will commence on the date of this lock-up agreement
(this “Lock-Up
Agreement”) and continue and include the date 90 days
after the date of the final prospectus used to sell Common Stock in
the Offering pursuant to the Underwriting Agreement relating to the
Offering.
-26-
If the
undersigned is an officer or director of the Company, (i) the
Representative agrees that, at least three business days before the
effective date of any release or waiver of the foregoing
restrictions in connection with a transfer of shares of Common
Stock, the Representative will notify the Company of the impending
release or waiver, and (ii) the Company has agreed in the
Underwriting Agreement to announce the impending release or waiver
by issuing a press release through a major news service at least
two business days before the effective date of the release or
waiver. Any release or waiver granted by the Representative
hereunder to any such officer or director shall only be effective
two business days after the publication date of such press release.
The provisions of this paragraph will not apply if both (a) the
release or waiver is effected solely to permit a transfer not for
consideration and (b) the transferee has agreed in writing to be
bound by the same terms described in this letter that are
applicable to the transferor, to the extent and for the duration
that such terms remain in effect at the time of the
transfer.
Notwithstanding the
foregoing, the undersigned may transfer the Undersigned’s
Securities: (i) as a bona
fide gift or gifts; (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the
undersigned; (iii) if the undersigned is a corporation,
partnership, limited liability company, trust or other business
entity, (a) to another corporation, partnership, limited liability
company, trust or other business entity that is a direct or
indirect affiliate (as defined in Rule 405 promulgated under the
Securities Act of 1933, as amended) of the undersigned or (b) in
distributions of shares of Common Stock or any security convertible
into or exercisable for Common Stock to limited partners, limited
liability company members or stockholders of the undersigned; (iv)
if the undersigned is a trust, to the beneficiary of such trust; or
(v) by testate succession or intestate succession; provided, in the case of clauses
(i)-(v), that (x) such transfer shall not involve a disposition for
value, (y) the transferee agrees in writing with the Underwriters
to be bound by the terms of this Lock-Up Agreement and (z) no
filing by any party under Section 16(a) of the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”), shall be required or shall be made voluntarily
in connection with such transfer. For purposes of this Lock-Up
Agreement, “immediate family” shall mean any
relationship by blood, marriage or adoption, not more remote than
first cousin.
In
addition, the foregoing restrictions shall not apply to:
(i) the undersigned’s exercise of equity-based awards
granted pursuant to the Company’s equity incentive plans in
place as of the date of this Lock-Up Agreement; provided, that (a) such restrictions
shall apply to any of the Undersigned’s Securities issued
upon such exercise and (b) that if any filing is required under
Section 16(a) of the Exchange Act in connection with such exercise,
such filing shall include a statement to the effect that such
filing is the result of the exercise of equity-based securities
pursuant to the Company’s equity incentive plans; or
(ii) the establishment of any contract, instruction or plan (a
“Plan”)
that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B)
under the Exchange Act; provided, that no sales of the
Undersigned’s Securities shall be made pursuant to such a
Plan prior to the expiration of the Lock-Up Period, and such a Plan
may only be established if no public announcement of the
establishment or existence thereof and no filing with the SEC or
other regulatory authority in respect thereof or transactions
thereunder or contemplated thereby, by the undersigned, the Company
or any other person, shall be required, and no such announcement or
filing is made voluntarily, by the undersigned, the Company or any
other person, prior to the expiration of the Lock-Up
Period.
In
furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer
of shares of Common Stock if such transfer would constitute a
violation or breach of this Lock-Up Agreement.
The
undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement and
that upon request, the undersigned will execute any additional
documents necessary to ensure the validity or enforcement of this
Lock-Up Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding
upon the successors, assigns, heirs or personal representatives of
the undersigned.
The
undersigned understands that the undersigned shall be released from
all obligations under this Lock-Up Agreement if (i) the
Company notifies the Underwriters in writing that it does not
intend to proceed with the Offering, (ii) the Representative
notifies the Company in writing that they have determined not to
proceed with the Offering, (iii) the Underwriting Agreement (other
than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the
Common Stock to be sold thereunder or (iv) the Underwriting
Agreement does not become effective by March 31, 2019.
The
undersigned understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Offering in reliance
upon this Lock-Up Agreement.
-27-
This
Lock-Up Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
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Very truly
yours,
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______________________________________
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Printed Name of
Holder
|
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By:
___________________________________
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Signature
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_______________________________________
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Printed
Name of Person Signing
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(if
signing as a custodian, trustee or on behalf of an entity, please
indicate capacity of person signing)
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-28-
