Empire Asset Management Company 2 Rector Street, 15th Floor New York, NY 10006
Exhibit 10.52
Empire Asset Management Company
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
September 17, 2008
Artes Medical, Inc.
0000 Xxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx,
Executive Chairman of the Board of Directors
0000 Xxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx,
Executive Chairman of the Board of Directors
Gentlemen:
The undersigned, Artes Medical, Inc., a Delaware corporation (the “Company”), desires to offer
for sale (the “Offering”) to certain “accredited investors” (each, an “Investor” and, collectively,
the “Investors”) through Empire Asset Management Company (“Empire” or the “Placement Agent”) up to
an aggregate of 3,300,000 shares (each, a “Share” and collectively, the “Shares”) of the Company’s
common stock, par value 0.0001 per Share (the “Common Stock”) at an offering price equal to a 10%
discount to the average closing price of the Common Stock for the five trading days preceding the
closing. For each Share purchased, an investor in the Offering will receive a warrant (each, a
“Warrant” and collectively, the “Warrants”) to purchase 1/2 Share (rounded up to the nearest whole
share) for a period of five (5) years commencing six months from the date of issuance, at a
purchase price equal to the consolidated closing bid price of the Common Stock immediately
preceding the date of any closing. The Shares and Warrants are hereinafter collectively referred to
as the “Securities.”
The offering of the Securities will be made by the Company solely pursuant to certain
Subscription Agreements which are included as an exhibit to an Investment Summary prepared by the
Company. “Investment Summary” as used in this Agreement means the Company’s Confidential Investment
Summary dated September 17, 2008, inclusive of all exhibits and schedules thereto, and all
amendments, supplements and appendices thereto. Unless otherwise defined, each term used in this
Agreement will have the same meaning as set forth in the Subscription Agreements.
1. Agreement to Act as Placement Agent. The Company hereby appoints Empire to act as its exclusive placement
agent in connection with the Offering. Empire hereby agrees, as agent of the Company, to solicit offers to purchase the Securities
on a “reasonable efforts” basis upon the terms and conditions set forth in the Investment Summary. The Offering
will commence on the date of the Investment Summary and continuing until September 26, 2008, unless
extended by the Company and the Placement Agent for an additional ninety (90) days or terminated
earlier as provided herein (the
Empire Asset Management Company
September 17, 2008
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“Offering Period”). The date on which the Offering shall terminate shall be referred to as the
“Termination Date.” Prior to the Termination Date, the Company shall not, without the prior written
consent of the Placement Agent, solicit or accept offers to purchase the Securities (other than
pursuant to the exercise of options or warrants to purchase shares of Common Stock that are
outstanding at the date hereof) otherwise than through the Placement Agent in accordance herewith.
2. Representations and Warranties of the Company. The Company represents and warrants to the
Placement Agent as follows:
(a) The Investment Summary has been diligently prepared by the Company, in conformity with all
applicable laws, and is in compliance with Regulation D as promulgated under Section 4(2) of the
Act (“Regulation D”), the Act and the requirements of all other rules and regulations (the
“Regulations”) of the Securities and Exchange Commission (the “SEC”) relating to offerings of the
type contemplated by the Offering, and the applicable securities laws and the rules and regulations
of those jurisdictions wherein the Placement Agent notifies the Company the Securities are to be
offered and sold. With respect to actions taken by the Company, the Securities will be offered and
sold pursuant to the registration exemption provided by Regulation D and Section 4(2) and/or
Section 4(6) of the Act as a transaction not involving a public offering and the requirements of
any other applicable state securities laws and the respective rules and regulations thereunder in
those jurisdictions in which the Placement Agent notifies the Company that the Securities are being
offered for sale. The Company has not taken nor will it take any action which conflicts with the
conditions and requirements of, or which would make unavailable with respect to the Offering, the
exemption(s) from registration available pursuant to Regulation D or Section 4(2) and/or Section
4(6) of the Act, and knows of no reason why any such exemption would be otherwise unavailable to
it. The Company has not been subject to any order, judgment or decree of any court of competent
jurisdiction temporarily, preliminarily or permanently enjoining it for failing to comply with
Section 503 of Regulation D.
(b) The Investment Summary does not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. None of the statements,
documents, certificates or other items prepared or supplied by the Company with respect to the
transactions contemplated hereby contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements contained therein not misleading in light of the
circumstances in which they were made. Through disclosures made by the Company to
representatives of the Placement Agent, the Company has disclosed to the Placement Agent and
its counsel all facts of which the Company is aware which materially and adversely affects or could
reasonably be expected to materially and adversely affect the business prospects, financial
condition, operations, property or affairs of the Company.
Empire Asset Management Company
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(c) Except as set forth in the Schedule of Exceptions and set forth in the Investment Summary,
the Company is not obligated to pay, and has not obligated the Placement Agent to pay, a finder’s
or origination fee in connection with the Offering to anyone other than the Placement Agent and
hereby agrees to indemnify the Placement Agent from any such claim made by any other person. The
Company has not offered for sale or solicited offers to purchase the Securities except for
negotiations with the Placement Agent. Except as set forth in the Schedule of Exceptions and set
forth in the Investment Summary, no other person has any right to participate in any offer, sale or
distribution of the Company’s securities to which the Placement Agent’s rights, described herein,
shall apply.
(d) Immediately prior to the Closing, the Agent’s Warrants (as defined in Section 3(e) hereof)
will have been duly authorized. No holder of any of the Agent’s Warrants will be subject to
personal liability solely by reason of being such a holder. None of the Agent’s Warrants are
subject to preemptive or similar rights of any stockholder or security holder of the Company or an
adjustment under the antidilution or exercise rights of any holders of any outstanding shares of
capital stock, options, warrants or other rights to acquire any securities of the Company.
Immediately prior to the Closing, a sufficient number of authorized but unissued shares of Common
Stock will have been reserved for issuance upon the exercise of the Agent’s Warrants.
(e) The Company has all requisite corporate power and authority to (i) enter into and perform
its obligations under this Agreement and (ii) issue, sell and deliver the Securities and the
Agent’s Warrants. This Agreement has been duly authorized, executed and delivered and constitutes
valid and binding obligations of the Company, enforceable against the Company in accordance with
its terms (i) except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect related to laws
affecting creditors’ rights generally, including the effect of statutory and other laws regarding
fraudulent conveyances and preferential transfers, and except that no representation is made herein
regarding the enforceability of the Company’s obligations to provide indemnification and
contribution remedies under the securities laws and (ii) subject to the limitations imposed by
general equitable principles (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(f) For the benefit of the Placement Agent, the Company hereby incorporates by reference all
of its representations and warranties as set forth in Section 3.2 of the Subscription Agreement
with the same force and effect as if specifically set forth herein.
3. Closing; Fees.
(a) Closing. Each prospective purchaser of Securities will be required to complete and execute
one original of the Subscription Agreement and the Investor Questionnaire in the forms attached as
Exhibits to the Investment Summary (the “Subscription Documents”). All funds for subscriptions
received from the Offering will
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be promptly forwarded by the Placement Agent of the Company, if received by it, to and deposited
into the escrow account (the “Escrow Account”) established for such purpose with Signature Bank, a
New York State chartered bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx XX 00000 (the “Escrow Agent”). All such
funds for subscriptions of Securities will be held in the Escrow Account pursuant to the terms of
the Escrow Agreement among the Company, the Placement Agent and the Escrow Agent. The Company will
either accept or reject the Subscription Documents in a timely fashion and at each closing of the
purchase and sale of the Securities (each, a “Closing”) will countersign the Subscription Documents
and provide duplicate copies of such Subscription Documents to the Placement Agent for distribution
to the subscribers. The Company will give notice to the Placement Agent of its acceptance of each
accepted subscription. The Company will return to subscribers incomplete, improperly executed and
rejected subscriptions and give notice thereof to the Placement Agent upon such return. If the
Company and Placement Agent has received and accepted subscriptions for the Securities prior to the
Termination Date and is satisfied that the funds for such Securities have been collected and all of
the conditions set forth elsewhere in this Agreement are fulfilled, a Closing shall be held
promptly with respect to the Securities sold. Thereafter, the remaining Securities will continue to
be offered and sold until the Termination Date. Additional Closings may from time to time be
conducted at times mutually agreeable with respect to additional Securities sold. The final Closing
(the “Final Closing”) shall occur within ten (10) days from the earlier of the Termination Date or
the Company’s acceptance of subscriptions for all Securities offered. Delivery of payment for the
accepted subscriptions for Securities from the funds received in respect of such sales will be made
at each Closing at such place as may be mutually agreed upon between the Company and the Placement
Agent against delivery of the Securities by the Company. If Subscription Documents have not been
received and accepted by the Company on or before the Termination Date, the Offering may be
terminated by the Placement Agent for any reason and no Securities will be sold, and the Escrow
Agent will, at the request of the Placement Agent, cause all
monies received from subscribers for the Securities to be promptly returned to such subscribers
without interest, penalty, expense or deduction.
(b) Agents Fee. The Company will pay a cash placement fee (the “Agent’s Fee”) to the
Placement Agent at each Closing equal to eight percent (8%) of the aggregate gross proceeds
received by the Company from the sale of all Securities sold in the Offering.
(c) Agent Warrants. As additional compensation hereunder, at each Closing, the Company will
issue to the Placement Agent or its designees, warrants (the “Agent’s Warrants”) to purchase such
number of shares of Common Stock equal to eight percent (8%) of all the Shares and shares of Common
Stock issuable upon exercise of the Warrants sold in such Closing. The Agent’s Warrants related to
Shares shall have an exercise price equal to the per share price of the Shares sold in the
Offering, and the Agent’s Warrants related to the shares of Common Stock issuable upon exercise of
the Warrants shall have an exercise price equal to the exercise price contained in the Warrants.
The Agent’s Warrants shall be exercisable until the date five (5) years after the six month
Empire Asset Management Company
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anniversary of the date of issuance. At the Placement Agent’s election, the Company may issued the
Agent’s Warrants all at once at the Final Closing. For the benefit of the Placement Agent, the
Company hereby incorporates by reference the registration rights provisions as set forth in Section
4 of the Subscription Agreement with the same force and effect as if specifically set forth herein.
Other than as specifically set forth herein, the Agent’s Warrants shall contain the same
provisions contained in the Warrants. The Agent’s Warrants and the Agent’s Fee are sometimes
collectively referred to herein as the “Agent’s Compensation.”
(d) Expenses. The Company shall bear all of its expenses in connection with the Offering.
Whether or not the Offering is successfully completed for any reason, Empire will be entitled, upon
presentation of a written accounting therefor in reasonable detail, to prompt reimbursement of its
actual, out-of-pocket expenses related to the Offering, including but not limited to fees and
expenses of Empire’s legal counsel, travel expenses, and due diligence related expenditures (the
“Agent Expense Reimbursement”); provided,
however, that Empire’s reimbursable expenses shall not
exceed $50,000, and any travel expenses over five hundred dollars ($500) shall be pre-approved by
the Company prior to being incurred. The provisions of this paragraph shall survive the Final
Closing and any termination of the Offering.
(e) EI Investors Tail. The Company shall also pay and issue to the Placement Agent the
Agent’s Compensation calculated according to the percentages set forth in Sections 3(b) and (c) of
this Agreement, if any person or entity to whom the Placement Agent has introduced (directly or
indirectly) to the Company during the term
of this Agreement (“EI Investors”) makes a private investment in the Company at any time prior to
the date that is twelve (12) months after the termination or expiration of this Agreement
regardless of whether such EI Investor purchased Securities in the Offering. In that regard, the
Placement Agent shall furnish the Company with a list of EI Investors (the “EI Potential Investor
List”) within 15 business days of the Termination Date or the Final Closing, which shall represent
a comprehensive list of EI Investors for purposes of the “tail” provisions of this section. The
Company acknowledges and agrees that the EI Investor Potential List is proprietary to the Placement
Agent and shall be maintained in strict confidence by the Company. As used herein, the term “EI
Investors” includes any party that is an affiliate of the specific party named in the EI Potential
Investor List.
(f) ROFR Agreement. Upon closing of at least 3,300,000 Shares in the Offering, the Company
hereby grants the Placement Agent a right of first refusal for a period of twelve (12) months from
such Closing to participate as a lead placement agent on any future private placement of the
Company’s securities or as one of the lead managing underwriters on any public offering of the
Company’s securities. It is understood that if a third party broker-dealer (including, without
limitation, JMP Securities or Xxxxxxxx Curhan Ford) provides the Company with written terms with
respect to a future securities offering (“Written Offering Terms”), the Company shall promptly
present same to the Placement Agent. The Placement Agent shall have ten (10) business days from its
receipt of the Written Offering Terms in which to determine whether or not to accept such offer
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and, if the Placement Agent refuses, and provided that such financing is consummated (a) with
another placement agent or underwriter upon substantially the same terms and conditions as the
Written Offering Terms and (b) within three months after the end of the aforesaid ten (10) business
day period, this right of first refusal shall thereafter be forfeited and terminated; provided,
however, if the financing is not consummated under the conditions of clauses (a) and (b) above,
then the right of first refusal shall once again be reinstated under the same terms and conditions
set forth in this paragraph. In addition, if Empire elects to act as a financial advisor or
placement agent to the Company for a financing transaction, Empire agrees to discuss with the
Company and Xxxxx Healthcare Royalty Partners, L.P. (“CHRP”) an opportunity for CHRP to participate
in such financing transaction as provided in Section 8.02 of the Revenue Interest Financing and
Warrant Purchase Agreement, dated January 28, 2008, by and between the Company and CHRP and
provided that Empire receives compensation as provided in Section 3 hereunder with respect to such
investment
4. Covenants of the Company.
(a) Company Expenses. The Company shall pay all reasonable expenses incurred in connection
with the preparation and printing of all necessary offering documents and instruments related to
the Offering, the issuance of the Securities
and will also pay the Company’s own expenses for accounting fees, legal fees, escrow account
fees and other costs involved with the Offering, including the printing costs of the Offering
documentation. The Company will provide at its own expense such quantities of the Offering
documentation and other documents and instruments relating to the Offering as the Placement Agent
may reasonably request. Further, as promptly as practicable after the Final Closing Date, the
Company shall prepare, at its own expense, no more than four “velobound volumes” relating to the
Offering and will distribute such volumes to the individuals designated by counsel to the Placement
Agent.
(b) Blue Sky. The Company will use its commercially reasonable
efforts to qualify the Securities for sale under the securities laws of such
jurisdictions as may be mutually agreed to by the Company and the Placement
Agent, and the Company will make such applications and furnish information as
may be required for such purposes, provided, that the Company will not be
required or obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Securities.
The Company or its counsel will provide counsel for the Placement Agent with copies of all
correspondence or other documentation filed with or received from any jurisdiction where the
Securities are to be registered or qualified or offered (including, without limitation, Form D
filing with the SEC). In addition, upon receipt of notification by the Company of the
qualification, registration or exemption of the Securities by an applicable jurisdiction, the
Company will promptly notify counsel for the Placement Agent in writing of such action.
Empire Asset Management Company
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In each jurisdiction where the Shares have been registered or qualified or are offered in an
exempt transaction as provided above, the Company will make and file such statements, documents,
materials, and reports as are or may be required to be made or filed by the Company by the laws of
such jurisdiction for so long a period as the Placement Agent may reasonably request.
The Company will promptly provide to the Placement Agent for delivery to all offerees and
investors and their representatives any additional information, documents and instruments which the
Placement Agent or the Company reasonably deem necessary to comply with the rules, regulations and
judicial and administrative interpretations respecting compliance with such exemptions or
qualifications and registrations in those states where the Securities are to be offered or sold.
The Company shall place a legend on the certificates representing the Securities issued to
subscribers and the Agent’s Warrants stating that the securities evidenced thereby have not been
registered under the Securities Act or applicable state securities laws, setting forth or referring
to the applicable restrictions on transferability and sale of such securities under the Securities
Act and applicable state laws.
(c) Amendments and Supplements. If, at any time prior o the Final Closing, any event shall
occur which does or may materially affect the Company or as a result of which it might become
necessary to amend or supplement the Investment Summary so that the representations and warranties
herein remain true, or in case it shall, in the opinion of the Placement Agent and its counsel or
counsel to the Company, be necessary to amend or supplement the Investment Summary to comply with
Regulation D or any other applicable securities laws or regulations, the Company will promptly
notify the Placement Agent and shall prepare and furnish to the Placement Agent a reasonable number
of copies of appropriate amendments and/or supplements in form and substance satisfactory to the
Placement Agent and its counsel.
(d) Use of Proceeds. The net proceeds of the Offering will be used by the Company, as more
fully described in the Investment Summary, for the purposes set forth in the Investment Summary.
(e) Legal Opinion and Closing Certificates. There shall have been delivered to the Placement
Agent a signed opinion of DLA Piper LLP (US), counsel to the Company (“Company Counsel”), dated as
of each Closing Date, in form and substance reasonably satisfactory to counsel to the Placement
Agent. In addition, the Placement Agent shall be entitled to receive copies of the closing
certificates required to be delivered pursuant to Section 6.1 of the Subscription Agreements.
5. Due Diligence and Company Cooperation. The Company shall make members of management and
other employees, advisors and agents available to Empire as Empire shall reasonably request. The
Company shall cooperate with the Placement Agent
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in connection with, and shall make available to the Placement Agent, historic, current and
prospective information concerning the business, assets, prospects, operations and financial
condition of the Company and such documents and other information as the Placement Agent shall
reasonably request in connection with the services to be performed by it under this Agreement. The
Company recognizes and confirms that the Placement Agent will use and rely, without investigation
as to accuracy and completeness, on the
documents and information (written and oral) provided by the Company and on information available
from generally recognized public sources in performing the services contemplated by this Agreement
and that the Placement Agent does not assume nor have responsibility for the accuracy or
completeness of such documents or information. Further, the Placement Agent does not assume any
obligation to make any solvency determination or to conduct any appraisal of assets or liabilities
of the Company.
6. Securities Law Compliance. Each of the Company and the Placement
Agent agrees to conduct the Offering in a manner intended (a) to qualify as a private placement of
the Securities in any jurisdiction in which the Securities are offered and (b) to comply with the
requirements of Rule 506 of Regulation D under the Securities Act. Assuming the accuracy of the
representations and warranties given to the Company by each investor to the extent relevant for
such determination, the Offering will be exempt from the registration requirements of the
Securities Act. In connection with offers made in the U.S. pursuant to Regulation D, the Company
and the Placement Agent agree (i) to limit offers to sell, and solicitations of offers to buy, the
Securities to persons reasonably believed by it to be “accredited investors” within the meaning of
Rule 501(a) under the Securities Act, and (ii) not to engage in any form of general solicitation or
general advertising in connection with the Offering within the meaning of Rule 502 under the
Securities Act.
7. Termination. The Offering may be terminated by the Placement Agent at any time prior to the
expiration of the Offering Period as contemplated in Section 1 hereof (the “Expiration Date”) in
the event that (a) any of the representations or warranties of the Company contained herein shall
prove to have been false or misleading in any material respect when made or deemed made or (b) the
Company shall have failed to perform any of its material obligations hereunder. This Offering may
be terminated by the Company at any time prior to the Expiration Date in the event that the
Placement Agent shall have failed to perform any of its material obligations hereunder. In the
event of any such termination under this Section 7, the Placement Agent shall be entitled to
receive, in addition to other rights and remedies it may have hereunder, at law or otherwise, an
amount equal to the sum of: (X) all Agent’s Fees earned through the Expiration Date, (Y) any
accountable Agent’s Expense Reimbursement through the Expiration Date; and (Z) all amounts which
may become payable in respect of EI Investors pursuant to Section 3(e) hereof.
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8. Miscellaneous.
(a) Survival. Any termination of the Offering without consummation thereof, or any
termination of this Agreement by the Company or the Placement Agent, shall be without obligation on
the part of any party except that the provisions of Sections 3(d), 3(e), 4(a), 7 and 8 shall
survive such termination.
(b) Representations, Warranties and Covenants to Survive Delivery. The representations,
warranties, indemnities, agreements, covenants and other statements of the Company contained herein
shall survive the Final Closing, if any, for a period of eighteen months.
(c) No Other Beneficiaries. This Agreement is intended for the sole and exclusive benefit of
the parties hereto and their respective successors, controlling persons and permitted assigns, and
no other person, firm or corporation shall have any third party beneficiary or other rights
hereunder.
(d) ARBITRATION, CHOICE OF LAW; COSTS. THE PARTIES HERETO AGREE TO SUBMIT ALL CONTROVERSIES TO
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS SET FORTH BELOW AND UNDERSTAND AND AGREE THAT (A)
ARBITRATION IS FINAL AND BINDING ON THE PARTIES, (B) THE PARTIES ARE WAIVING THEIR RIGHTS TO SEEK
REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL, (C) PRE-ARBITRATION DISCOVERY IS GENERALLY
MORE LIMITED AND DIFFERENT FROM COURT PROCEEDINGS, (D) THE ARBITRATOR’S AWARD IS NOT REQUIRED TO
INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION
OF RULINGS BY ARBITRATORS IS STRICTLY LIMITED, (E) THE PANEL OF FINANCIAL INDUSTRY REGULATORY
AUTHORITY (“FINRA”) ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE
AFFILIATED WITH THE SECURITIES INDUSTRY, AND (F) ALL CONTROVERSIES WHICH MAY ARISE BETWEEN THE
PARTIES CONCERNING THIS AGREEMENT SHALL BE DETERMINED BY ARBITRATION PURSUANT TO THE RULES THEN
PERTAINING TO FINRA IN XXX XXXX XX XXX XXXX, XXXXX XX XXX XXXX. JUDGMENT ON ANY AWARD OF ANY SUCH
ARBITRATION MAY BE ENTERED IN THE SUPREME COURT OF THE STATE OF NEW YORK OR IN ANY OTHER COURT
HAVING JURISDICTION OVER THE PERSON OR PERSONS AGAINST WHOM SUCH AWARD IS RENDERED. THE PARTIES
AGREE THAT THE DETERMINATION OF THE ARBITRATORS SHALL BE BINDING AND CONCLUSIVE UPON THEM. ANY
NOTICE OF SUCH ARBITRATION OR FOR THE CONFIRMATION OF ANY AWARD IN ANY ARBITRATION SHALL BE
SUFFICIENT IF GIVEN IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT. THE PREVAILING PARTY, AS
DETERMINED BY SUCH ARBITRATORS IN AN ARBITRATION
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PROCEEDING SHALL BE ENTITLED TO COLLECT ANY COSTS, DISBURSEMENTS AND REASONABLE ATTORNEY’S FEES
FROM THE OTHER PARTY.
(e) Notices. All notices, requests, demands and other
communications which are required or may be given hereunder shall be in
writing and shall be deemed to have been duly given (i) when delivered
personally, receipt acknowledged, (ii) five (5) days after being sent by
registered or certified mail, return receipt requested, postage prepaid or
(iii) one (1) business day after being sent via a reputable nationwide
overnight courier service guaranteeing next business day delivery. All notices
shall be made to the parties at the addresses designated above or at such
other or different addresses which a party may subsequently provide with
notice thereof, and to their respective legal counsel, as follows:
If to Empire, to:
Empire Asset Management Company
0 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
0 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
or to such other person or address as Empire shall furnish to the Company in writing.
If to the Company, to:
Artes Medical, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx, Executive Chairman of the Board
Fax: (000) 000-0000
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx, Executive Chairman of the Board
Fax: (000) 000-0000
Empire Asset Management Company
September 17, 2008
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September 17, 2008
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with a copy to:
DLA Piper US LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Empire in writing.
(f) Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all of which taken together shall constitute one and the same
agreement (and all signatures need not appear on anyone counterpart). In the event that any
signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data
file, such signature shall create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and effect as if such facsimile or
“.pdf” signature page were an original thereof. This Agreement shall become effective when one or
more counterparts has been signed and delivered by each of the parties hereto.
(g) Entire Agreement. This Agreement constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, documents, negotiations and discussions, whether oral or written, of
the parties hereto, including that certain engagement agreement, dated September 12, 2008, between
the Company and the Placement Agent (the “Engagement Agreement”). Notwithstanding the foregoing,
the provisions set forth in Section 6 of the Engagement Agreement with respect to indemnification
and contribution and in Section 8(e) of the Engagement Agreement with respect to confidentiality
shall continue in full force and effect following the execution of this Agreement.
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If you find the foregoing is in accordance with our understanding, kindly sign and return to
us a counterpart hereof, whereupon this instrument along with all counterparts will become a
binding agreement between us.
Dated: September 17, 2008
| Very truly yours, ARTES MEDICAL, INC. |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxx | |||
| Xxxxxxxxxxx X. Xxxxxxxx | ||||
| Executive Chairman of the Board | ||||
ACCEPTED AND AGREED TO:
EMPIRE ASSET MANAGEMENT COMPANY
By:
|
/s/ Xxxxx Xxxxx
|
|||
| President & CEO |
