SANARA MEDTECH INC. 1,100,000 Shares of Common Stock (par value $0.001 per share) Underwriting Agreement
Exhibit 1.1
Execution
1,100,000 Shares of Common Stock
(par value $0.001 per
share)
February 12, 2021
Cantor
Xxxxxxxxxx & Co.
As
Representative of the several Underwriters listed in Schedule A hereto
c/o
Cantor Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
Sanara
MedTech Inc., a Texas corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule A (the
“Underwriters”)
an aggregate of 1,100,000 shares (the “Shares”) of its common stock, par
value $0.001 per share (the “Common Stock”). The 1,100,000
Shares to be sold by the Company are called the “Firm Shares.” In addition, the
Company has granted to the Underwriters an option to purchase up to
an additional 165,000 Shares. The Shares to be sold, if any,
pursuant to such option are collectively called the
“Option Shares.”
The Firm Shares and, if and to the extent such option is exercised,
the Option Shares, are collectively called the “Offered Shares.” Cantor Xxxxxxxxxx
& Co. (“Cantor”) has agreed to act as
representative of the several Underwriters (in such capacity, the
“Representative”) in connection
with the offering and sale of the Offered Shares. To the extent
there are no additional underwriters listed on Schedule A, the term
“Representative” as used herein shall mean Cantor, as
Underwriter, and the term “Underwriters” shall mean
either the singular or the plural, as the context
requires.
The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a shelf registration
statement on Form S-3, File No. 333-251652, including a
base prospectus (the “Base
Prospectus”) to be used in connection with the public
offering and sale of the Offered Shares. Such registration
statement, as amended, including the financial statements, exhibits
and schedules thereto, in the form in which it became effective
under the Securities Act of 1933, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), including all
documents incorporated or deemed to be incorporated by reference
therein and any information deemed to be a part thereof at the time
of effectiveness pursuant to Rule 430A or 430B under the
Securities Act, is called the “Registration Statement.” Any
registration statement filed by the Company pursuant to Rule 462(b)
under the Securities Act in connection with the offer and sale of
the Offered Shares is called the “Rule 462(b) Registration
Statement,” and from and after the date and time of
filing of any such Rule 462(b) Registration Statement the term
“Registration Statement” shall include the Rule 462(b)
Registration Statement. The preliminary prospectus supplement dated
February 11, 2021 describing the Offered Shares and the offering
thereof (the “Preliminary
Prospectus Supplement”), together with the Base
Prospectus is called the
“Preliminary
Prospectus,” and the Preliminary Prospectus and any
other prospectus supplement to the Base Prospectus in preliminary
form that describes the Offered Shares and the offering thereof and
is used prior to the filing of the Prospectus (as defined below),
together with the Base Prospectus, is called a “preliminary prospectus.” As used
herein, the term “Prospectus” shall mean the final
prospectus supplement to the Base Prospectus that describes the
Offered Shares and the offering thereof (the “Final Prospectus Supplement”),
together with the Base Prospectus in the form first used by the
Underwriters to confirm sales of the Offered Shares or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act. As used
herein, “Applicable
Time” is 9:00 a.m. (New York time) on February 12,
2021. As used herein, “free
writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, and “Time of Sale Prospectus” means the
Preliminary Prospectus, as amended or supplemented immediately
prior to the Applicable Time, together with the free writing
prospectuses, if any, identified on Schedule B hereto and the
pricing information set forth on Schedule C hereto. As used
herein, “Road
Show” means a “road show” (as defined in
Rule 433 under the Securities Act) relating to the offering of the
Offered Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Securities
Act). As used herein, “Rule
163B Written Communication” means each written
communication (within the meaning of Rule 405 under the Securities
Act) that is made in reliance on Rule 163B under the Securities Act
by the Company or any person authorized to act on behalf of the
Company to one or more potential investors that are qualified
institutional buyers (“QIBs”) and/or institutions that
are accredited investors (“IAIs”), as such terms are
respectively defined in Rule 144A and Rule 501(a) under the
Securities Act, to determine whether such investors might have an
interest in the offering of the Offered Shares; “Rule 163B Oral Communication”
means each oral communication, if any, made in reliance on Rule
163B under the Securities Act by the Company or any person
authorized to act on behalf of the Company made to one or more QIBs
and/or one or more IAIs to determine whether such investors might
have an interest in the offering of the Offered Shares;
“Marketing
Materials” means any materials or information provided
to investors by, or with the approval of, the Company in connection
with the marketing of the offering of the Offered Shares, including
any Road Show or investor presentations made to investors by the
Company (whether in person or electronically); and
“Permitted Rule 163B
Communication” means the Rule 163B Written
Communication(s) listed on Schedule D attached
hereto.
All
references in this agreement (this “Agreement”) to financial
statements and schedules and other information which are
“contained,” “included” or
“stated” in, or “part of” the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary
Prospectus, any preliminary prospectus, the Base Prospectus, the
Time of Sale Prospectus or the Prospectus, and all other references
of like import, shall be deemed to mean and include all such
financial statements and schedules and other information which is
or is deemed to be incorporated by reference in the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary
Prospectus, any preliminary prospectus, the Base Prospectus, the
Time of Sale Prospectus or the Prospectus, as the case may
be.
All
references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934, and the rules
and regulations promulgated thereunder (collectively, the
“Exchange Act”)
that is or is deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus, or the Prospectus, as the case may
be.
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All
references in this Agreement to (i) the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus or the Prospectus, any amendments or
supplements to any of the foregoing, or any free writing
prospectus, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (“XXXXX”) and (ii) the
Prospectus shall be deemed to include any “electronic
Prospectus” provided for use in connection with the offering
of the Offered Shares as contemplated by Section 3(n).
In the
event that the Company has only one subsidiary, then all references
herein to “subsidiaries” of the Company shall be deemed
to refer to such single subsidiary, mutatis mutandis.
The
Company hereby confirms its agreements with the Underwriters as
follows:
1. Representations and Warranties of the
Company. The Company represents and warrants to each
Underwriter as of the date of this Agreement, the Applicable Time,
the First Closing Date (as hereinafter defined) and each Option
Closing Date (as hereinafter defined), if any, as
follows:
(a) Compliance with Registration
Requirements. The Registration Statement has become
effective under the Securities Act. The Company has complied, to
the Commission’s satisfaction, with all requests of the
Commission for additional or supplemental information, if any. No
stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission. At the
time the Company’s Annual Report on Form 10-K for the year
ended December 31, 2019 (the “Annual Report”) was filed with the
Commission, or, if later, at the time the Registration Statement
was originally filed with the Commission, the Company met the
then-applicable requirements for use of Form S-3 under the
Securities Act. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, at the time they were or
hereafter are filed with the Commission, or became effective under
the Exchange Act, as the case may be, complied and will comply in
all material respects with the requirements of the Exchange
Act.
(b) Disclosure. Each preliminary
prospectus and the Prospectus when filed complied in all material
respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX, was identical (except as may be
permitted by Regulation S-T under the Securities Act) to the
copy thereof delivered to the Underwriters for use in connection
with the offer and sale of the Offered Shares. Each of the
Registration Statement and any post-effective amendment thereto, at
the time it became or becomes effective and at all subsequent
times, complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. As of the Applicable Time, the Time of Sale
Prospectus did not, and at the time of each sale of the Offered
Shares and at the First Closing Date (as defined in Section 2), the
Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The Prospectus, as of its
date and (as then amended or supplemented) at all subsequent times,
did not and will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties set forth in the three immediately preceding sentences
do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the
Prospectus or the Time of Sale Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
written information relating to any Underwriter furnished to the
Company in writing by the Representative expressly for use therein,
it being understood and agreed that the only such information
consists of the information described in Section 9(b). There are no
contracts or other documents required to be described in the Time
of Sale Prospectus or the Prospectus or to be filed as an exhibit
to the Registration Statement which have not been described or
filed as required.
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(c) Free Writing Prospectuses; Road
Show. As of the determination date referenced in Rule 164(h)
under the Securities Act, the Company was not, is not or will not
be (as applicable) an “ineligible issuer” in connection
with the offering of the Offered Shares pursuant to Rules 164, 405
and 433 under the Securities Act. Each free writing prospectus that
the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act. Each free
writing prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of Rule 433 under the Securities Act, including timely
filing with the Commission or retention where required and
legending, and each such free writing prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Offered Shares did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, the Prospectus or any preliminary prospectus and not
superseded or modified. Except for the free writing prospectuses,
if any, identified in Schedule B, and electronic Road
Shows, if any, furnished to the Representative before first use,
the Company has not prepared, used or referred to, and will not,
without the Representative’s prior written consent, prepare,
use or refer to, any free writing prospectus. Each Road Show, when
considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) Market Capitalization. At the
time the Registration Statement was originally declared effective,
and, if after such date, at the time the Company’s most
recent Annual Report on Form 10-K was filed with the Commission,
the Company met the then applicable requirements for the use of
Form S-3 under the Securities Act, including General Instruction
I.B.1 of Form S-3. The Company is not a shell company (as defined
in Rule 405 under the Securities Act) and has not been a shell
company for at least 12 calendar months previously and if it has
been a shell company at any time previously, has filed current Form
10 information (as defined in Instruction I.B.6 of Form S-3) with
the Commission at least 12 calendar months previously reflecting
its status as an entity that is not a shell company.
(e) Testing-the-Waters Materials.
The Company (i) has not alone engaged in any Rule 163B Written
Communication or Rule 163B Oral Communication and (ii) has not
authorized anyone other than the Representative to engage in such
Permitted Rule 163B Communications. The Company reconfirms that the
Representative has been authorized to act on its behalf in
undertaking Marketing Materials, Rule 163B Oral Communications and
Rule 163B Written Communications. The Company has not distributed
or approved for distribution any Rule 163B Written Communications.
Any individual Permitted Rule 163B Communication does not conflict
with the information contained in the Registration Statement or the
Time of Sale Prospectus, complied in all material respects with the
Securities Act, and when taken together with the Time of Sale
Prospectus as of the Applicable Time, did not, and as of the First
Closing Date and as of each Option Closing Date, as the case may
be, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
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(f) Distribution of Offering Material By
the Company. Prior to the later of (i) the expiration or
termination of the option granted to the several Underwriters in
Section 2, and (ii) the completion of the
Underwriters’ distribution of the Offered Shares, the Company
has not distributed and will not distribute any offering material
in connection with the offering and sale of the Offered Shares
other than the Registration Statement, the Time of Sale Prospectus,
the Prospectus or any free writing prospectus reviewed and
consented to by the Representative, and the free writing
prospectuses, if any, identified on Schedule B hereto and any
Permitted Rule 163B Communications.
(g) Financial Information. The
consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, if any, together with the
related notes and schedules, present fairly, in all material
respects, the consolidated financial position of the Company and
its Subsidiaries (as defined below) as of the dates indicated and
the consolidated results of operations, cash flows and changes in
stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the
Securities Act and Exchange Act and in conformity with GAAP (as
defined below) applied on a consistent basis during the periods
involved; there are no financial statements (historical or pro
forma) that are required to be included or incorporated by
reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus that are not included or incorporated
by reference as required; the Company and its Subsidiaries (as
defined below) do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto), the Time of Sale Prospectus and the Prospectus; and all
disclosures contained or incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus and the Issuer Free Writing Prospectuses, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable. The financial
data set forth in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus under the caption
“Prospectus Supplement Summary—Summary Historical
Consolidated Financial Information” fairly present the
information set forth therein on a basis consistent with that of
the audited financial statements contained in the Registration
Statement, the Time of Sale Prospectus and the
Prospectus. The
interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement 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.
(h) Conformity with XXXXX Filing.
The Preliminary Prospectus and Final Prospectus delivered to the
Underwriters for use in connection with the sale of the Offered
Shares pursuant to this Agreement will be identical to the versions
of the Preliminary Prospectus and Final Prospectus created to be
transmitted to the Commission for filing via XXXXX, except to the
extent permitted by Regulation S-T.
(i) Organization. The Company and
each of its significant subsidiaries (as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act) (“Subsidiaries”) are duly organized,
validly existing as a corporation or other entity and in good
standing under the Laws (as defined below) of their respective
jurisdictions of organization. The Company and each of its
Subsidiaries are duly licensed or qualified as a foreign
corporation for transaction of business and in good standing under
the Laws of each other jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such license or qualification, and have all
corporate or other organizational power and authority necessary to
own or hold their respective properties and to conduct their
respective businesses as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, except where the
failure to be so qualified or in good standing or have such power
or authority would not, individually or in the aggregate, have a
material adverse effect or would reasonably be expected to have a
material adverse effect on or affecting the assets, business,
operations, earnings, properties, condition (financial or
otherwise), prospects, stockholders’ equity or results of
operations of the Company and its Subsidiaries taken as a whole, or
prevent or materially interfere with the consummation of the
transactions contemplated hereby (a “Material Adverse
Effect”).
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(j) Subsidiaries. Except as set
forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, the Company owns, directly or indirectly, all
of the equity interests of its Subsidiaries free and clear of any
lien, charge, security interest, encumbrance, right of first
refusal or other restriction, and all the equity interests of its
Subsidiaries are validly issued and are fully paid, nonassessable
and free of preemptive and similar rights. No Subsidiary is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such Subsidiary’s capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary of the Company.
(k) No Violation or Default.
Neither the Company nor any of its Subsidiaries is (i) in
violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement 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 are
subject; or (iii) in violation of any Law of any Governmental
Authority (as defined below), except, in the case of each of
clauses (ii) and (iii) above, for any such violation or default
that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. To the Company’s
knowledge, no other party under any material contract or other
agreement to which it or any of its Subsidiaries is a party is in
default in any respect thereunder where such default would
reasonably be expected to have a Material Adverse
Effect.
(l) No Material Adverse Effect.
Subsequent to the respective dates as of which information is given
in the Registration Statement, the Time of Sale Prospectus, the
Prospectus and the Free Writing Prospectuses, if any (including any
document deemed incorporated by reference therein), there has not
been (i) any Material Adverse Effect or the occurrence of any
development that the Company reasonably expects will result in a
Material Adverse Effect, (ii) any transaction which is material to
the Company and its Subsidiaries taken as a whole, (iii) any
obligation or liability, direct or contingent (including any
off-balance sheet obligations), incurred by the Company or any
Subsidiary, which is material to the Company and its Subsidiaries
taken as a whole, (iv) any material change in the capital stock or
outstanding long-term indebtedness of the Company or any of its
Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary, other than in each case above in the ordinary course of
business or as otherwise disclosed in the Registration Statement or
Prospectus (including any document deemed incorporated by reference
therein).
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(m) Capitalization. The issued and
outstanding shares of capital stock of the Company have been
validly issued, are fully paid and nonassessable and, other than as
disclosed in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, are not subject to any preemptive
rights, rights of first refusal or similar rights. The Company has
an authorized, issued and outstanding capitalization as set forth
in the Registration Statement and the Prospectus as of the dates
referred to therein (other than the grant of additional options
under the Company’s existing stock option plans, or changes
in the number of outstanding shares of Common Stock of the Company
due to the issuance of shares upon the exercise or conversion of
securities exercisable for, or convertible into, Common Stock
outstanding on the date hereof) and such authorized capital stock
conforms in all material respects to the description thereof set
forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus. The description of the securities of the
Company in the Registration Statement, the Time of Sale Prospectus
and the Prospectus is complete and accurate in all material
respects. Except as disclosed in or contemplated by the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, as of the date referred to therein, the Company does
not have outstanding any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations
convertible into, or exchangeable for, or any contracts or
commitments to issue or sell, any shares of capital stock or other
securities.
(n) Authorization; Enforceability.
The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting creditors’ rights generally and by general
equitable principles.
(o) Authorization of the Offered
Shares. The Offered Shares have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company against payment therefor pursuant to this
Agreement, will be duly and validly issued, fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, including any statutory or
contractual preemptive rights, resale rights, rights of first
refusal or other similar rights, and will be registered pursuant to
Section 12 of the Exchange Act. The Offered Shares, when issued,
will conform in all material respects to the description thereof
set forth in or incorporated into the Registration Statement, the
Time of Sale Prospectus and the Prospectus.
(p) No Consents Required. No
consent, approval, authorization, order, registration or
qualification of or with any Governmental Authority is required for
the execution, delivery and performance by the Company of this
Agreement, the issuance and sale by the Company of the Offered
Shares, except for such consents, approvals, authorizations, orders
and registrations or qualifications as may be required under
applicable state securities Laws or Laws of the Financial Industry
Regulatory Authority Inc. (“FINRA”) or The Nasdaq Stock Market
in connection with the sale of the Offered Shares by the
Underwriters.
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(q) No Preferential Rights. Except
as set forth in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, (i) no person, as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the
Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to
such Person any Common Stock or shares of any other capital stock
or other securities of the Company, (ii) no Person has any
preemptive rights, resale rights, rights of first refusal, rights
of co-sale, or any other rights (whether pursuant to a
“poison pill” provision or otherwise) to purchase any
Common Stock or shares of any other capital stock or other
securities of the Company, (iii) no Person has the right to
act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Common Stock, and
(iv) no Person has the right, contractual or otherwise, to
require the Company to register under the Securities Act any Common
Stock or shares of any other capital stock or other securities of
the Company, or to include any such shares or other securities in
the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Offered Shares as
contemplated thereby or otherwise.
(r) Independent Public Accounting
Firm. MaloneBailey, LLP (the “Accountant”), whose report on the
consolidated financial statements of the Company is filed with the
Commission as part of the Company’s most recent Annual Report
on Form 10-K filed with the Commission and incorporated by
reference into the Registration Statement and the Prospectus, are
and, during the periods covered by their report, were an
independent registered public accounting firm within the meaning of
the Securities Act and the Public Company Accounting Oversight
Board (United States). To the Company’s knowledge, the
Accountant is not in violation of the auditor independence
requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx
Act”) with respect to the Company.
(s) Enforceability of Agreements.
All agreements between the Company and third parties expressly
referenced in the Prospectus are legal, valid and binding
obligations of the Company enforceable in accordance with their
respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar Laws affecting creditors’ rights
generally and by general equitable principles and (ii) the
indemnification provisions of certain agreements may be limited by
federal or state securities Laws or public policy considerations in
respect thereof.
(t) No Litigation. Except as set
forth in the Registration Statement, the Time of Sale Prospectus or
the Prospectus, there are no actions, suits or proceedings by or
before any Governmental Authority pending, nor, to the
Company’s knowledge, any audits or investigations by or
before any Governmental Authority, to which the Company or a
Subsidiary is a party or to which any property of the Company or
any of its Subsidiaries is the subject that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect and, to the Company’s knowledge, no such actions,
suits, proceedings, audits or investigations are threatened or
contemplated by any Governmental Authority or threatened by others;
and (i) there are no current or pending audits,
investigations, actions, suits or proceedings by or before any
Governmental Authority that are required under the Securities Act
to be described in the Time of Sale Prospectus or Prospectus that
are not so described; and (ii) there are no contracts or other
documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement that are not so
filed.
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(u) Medicare and Medicaid Programs.
To the extent required in connection with their respective
businesses, each of the Company and its Subsidiaries has the
requisite provider number or other authorization to xxxx the
Medicare program and the respective Medicaid program in the state
or states in which such entity operates unless failure to maintain
such provider number or other authorization could not, individually
or in the aggregate, have a Material Adverse Effect; neither the
Company nor any of its Subsidiaries is subject to any pending or,
to the Company’s knowledge, threatened or contemplated action
which could reasonably be expected to result either in a revocation
of any provider number or authorization or in the Company’s
or any Subsidiary’s exclusion from the Medicare or any state
Medicaid programs; the Company’s and each of its
subsidiaries’ business practices have been structured in a
manner reasonably designed to comply with the federal or state Laws
governing Medicare and state Medicaid programs, including Sections
1320a-7a and 1320a-7b of Title 42 of the United States Code, and
the Company reasonably believes that it is in compliance with such
Laws; the Company and its Subsidiaries have taken reasonable
actions designed to ensure that they do not: (i) violate the False
Claims Act, 31 U.S.C. §§ 3729-3733 or (ii) allow any
individual with an ownership or control interest (as defined in 42
U.S.C. § 1320a-3(a)(3)) in the Company or any of its
Subsidiaries or have any officer, director or managing employee (as
defined in 42 U.S.C. § 1320a-5(b)) of the Company or any of
its Subsidiaries who would be a person excluded from participation
in any federal health care program (as defined in 42 U.S.C. §
1320a-7b(f)) as described in 42 U.S.C. § 1320a-7(b)(8); and
the Company and its Subsidiaries have structured their respective
businesses practices in a manner reasonably designed to comply with
the federal and state Laws regarding physician ownership of (or
financial relationship with), and referral to, entities providing
healthcare-related goods or services, and with Laws requiring
disclosure of financial interests held by physicians in entities to
which they may refer patients for the provisions of
healthcare-related goods or services, and the Company reasonably
believes that it and its Subsidiaries are in compliance with such
Laws.
(v) Consents and Permits. Except as
disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, the Company and its Subsidiaries
have made all filings, applications and submissions required by,
possess and are operating in compliance with all approvals,
licenses, certificates, certifications, clearances, consents,
grants, exemptions, marks, notifications, orders, permits and other
authorizations issued by, the appropriate federal, state or foreign
Governmental Authority (including the United States Food and Drug
Administration (the “FDA”), the United States Drug
Enforcement Administration or any other foreign, federal, state,
provincial or local Government Authorities engaged in the
regulation of clinical trials, pharmaceuticals, biologics or
biohazardous substances or materials) necessary for the ownership
or lease of their respective properties or to conduct its
businesses as described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus (collectively,
“Permits”),
except for such Permits the failure of which to possess, obtain or
file would not reasonably be expected to have a Material Adverse
Effect; the Company and its Subsidiaries are in compliance with the
terms and conditions of all such Permits, except where the failure
to be in compliance would not reasonably be expected to have a
Material Adverse Effect; all of the Permits are valid and in full
force and effect, except where any invalidity, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries
has received any written notice relating to the limitation,
revocation, cancellation, suspension, modification or non-renewal
of any such Permit which, if the subject of an unfavorable
decision, ruling or finding, would not reasonably be expected to
have a Material Adverse Effect, or has any reason to believe that
any such license, certificate, permit or authorization will not be
renewed in the ordinary course. To the extent required by
applicable Laws of the FDA, the Company or the applicable
Subsidiary has submitted to the FDA an Investigational New Drug
Application or amendment or supplement thereto for each clinical
trial it has conducted or sponsored or is conducting or sponsoring;
all such submissions were in material compliance with applicable
Laws when submitted and no material deficiencies have been asserted
by the FDA with respect to any such submissions. The Company and
each Subsidiary possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and neither the Company nor any Subsidiary
has received, or has any reason to believe that it will receive,
any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit which, if the subject of an unfavorable
decision, ruling or finding, would not reasonably be expected to
have a Material Adverse Effect.
-9-
(w) Regulatory Filings. Except as
disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, neither the Company nor any of its
Subsidiaries has failed to file with the applicable Governmental
Authority (including the FDA, or any foreign, federal, state,
provincial or local Governmental Authority performing functions
similar to those performed by the FDA) any required filing,
declaration, listing, registration, report or submission, except
for such failures that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; except as
disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, all such filings, declarations,
listings, registrations, reports or submissions were in compliance
with applicable Laws when filed and no deficiencies have been
asserted by any applicable regulatory authority with respect to any
such filings, declarations, listings, registrations, reports or
submissions, except for any deficiencies that, individually or in
the aggregate, would not have a Material Adverse Effect. The
Company has operated and currently is, in all material respects, in
compliance with the United States Federal Food, Drug, and Cosmetic
Act, all applicable rules and regulations of the FDA and other
federal, state, local and foreign Governmental Authority exercising
comparable authority. The Company has no knowledge of any studies,
tests or trials not described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus the results of which
reasonably call into question in any material respect the results
of the studies, tests and trials described in the Registration
Statement, the Time of Sale Prospectus and the
Prospectus.
(x) Intellectual Property. Except
as disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, the Company and its Subsidiaries
own, possess, license or have other rights to use all foreign and
domestic patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, Internet domain
names, know-how and other intellectual property (collectively, the
“Intellectual
Property”) necessary for the conduct of their
respective businesses as now conducted except to the extent that
the failure to own, possess, license or otherwise hold adequate
rights to use such Intellectual Property would not, individually or
in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus (i) there are no rights of third
parties to any such Intellectual Property owned by the Company and
its Subsidiaries, except for licenses granted in the ordinary
course to third parties; (ii) to the Company’s knowledge,
there is no infringement by third parties of any such Intellectual
Property; (iii) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company’s and its Subsidiaries’ rights
in or to any such Intellectual Property, and the Company is unaware
of any facts which could form a reasonable basis for any such
action, suit, proceeding or claim; (iv) there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding
or claim by others challenging the validity or scope of any such
Intellectual Property; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company and its Subsidiaries infringe or
otherwise violate any patent, trademark, copyright, trade secret
and its proprietary rights of others; (vi) to the Company’s
knowledge, there is no third-party U.S. patent or published U.S.
patent application which contains claims for which an Interference
Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus as being owned by or licensed to the Company; and (vii)
the Company and its Subsidiaries have complied with the material
terms of each agreement pursuant to which Intellectual Property has
been licensed to the Company or such Subsidiary, and all such
agreements are in full force and effect, except, in the case of any
of clauses (i)-(vii) above, for any such infringement by third
parties or any such pending or threatened suit, action, proceeding
or claim as would not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
-10-
(y) Clinical Studies. The
preclinical studies and tests and clinical trials described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus were, and, if still pending, are, to the Company’s
knowledge, being conducted in all material respects in accordance
with the experimental protocols, procedures and controls pursuant
to, where applicable, accepted professional and scientific
standards for products or product candidates comparable to those
being developed by the Company; the descriptions of such studies,
tests and trials, and the results thereof, contained in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus are accurate and complete in all material respects; the
Company is not aware of any tests, studies or trials not described
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, the results of which reasonably call into question the
results of the tests, studies and trials described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus; and the Company has not received any written notice or
correspondence from the FDA or any foreign, state or local
Governmental Authority exercising comparable authority or any
institutional review board or comparable authority requiring the
termination, suspension, clinical hold or material modification of
any tests, studies or trials.
(z) No Material Defaults. Neither
the Company nor any of its Subsidiaries has defaulted on any
installment on indebtedness for borrowed money or on any rental on
one or more long-term leases, which defaults, individually or in
the aggregate, would reasonably be expected to have a Material
Adverse Effect. The Company has not filed a report pursuant to
Section 13(a) or 15(d) of the Exchange Act since the filing of its
last Annual Report on Form 10-K, indicating that it (i) has failed
to pay any dividend or sinking fund installment on preferred stock
or (ii) has defaulted on any installment on indebtedness for
borrowed money or on any rental on one or more long-term leases,
which defaults, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(aa) Certain
Market Activities. Neither the Company nor any of its
Subsidiaries has taken, directly or indirectly, any action designed
to or that would reasonably be expected to cause or result in
stabilization or manipulation of the price of the Shares or of any
“reference security” (as defined in Rule 100 of
Regulation M under the Exchange Act (“Regulation M”)) with respect to
the Shares, whether to facilitate the sale or resale of the Offered
Shares or otherwise, and has taken no action which would directly
or indirectly violate Regulation M.
(bb) Broker/Dealer
Relationships. Neither the Company nor any of its
Subsidiaries (i) is required to register as a
“broker” or “dealer” in accordance with the
provisions of the Exchange Act or (ii) directly or indirectly
through one or more intermediaries, controls or is a “person
associated with a member” or “associated person of a
member” (within the meaning set forth in the FINRA
Manual).
(cc) No
Reliance. The Company has not relied upon the Underwriters
or legal counsel for the Underwriters for any legal, tax or
accounting advice in connection with the offering and sale of the
Offered Shares.
(dd) Taxes.
The Company and each of its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and paid all taxes shown thereon through the date hereof, to
the extent that such taxes have become due and are not being
contested in good faith, except where the failure to so file or pay
would not have a Material Adverse Effect. Except as otherwise
disclosed in or contemplated by the Registration Statement, the
Time of Sale Prospectus and the Prospectus, no tax deficiency has
been determined adversely to the Company or any of its Subsidiaries
which has had, or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The
Company has no knowledge of any federal, state or other
governmental tax deficiency, penalty or assessment which has been
or might be asserted or threatened against it which would have a
Material Adverse Effect.
-11-
(ee) Title
to Real and Personal Property. Except as set forth in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, the Company and its Subsidiaries have good and
marketable title in fee simple to all items of real property owned
by them, and good and valid title to all personal property
described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus as being owned by them that are
material to the businesses of the Company or such Subsidiary, in
each case free and clear of all liens, encumbrances and claims,
except those matters that (i) do not materially interfere with the
use made and proposed to be made of such property by the Company
and any of its Subsidiaries or (ii) would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. Any real or personal property described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus as being
leased by the Company and any of its Subsidiaries is held by them
under valid, existing and enforceable leases, except those that (A)
do not materially interfere with the use made or proposed to be
made of such property by the Company or any of its Subsidiaries or
(B) would not be reasonably expected, individually or in the
aggregate, to have a Material Adverse Effect. Each of the
properties of the Company and its Subsidiaries complies with all
applicable Laws (including building and zoning Laws and Laws
relating to access to such properties), except if and to the extent
disclosed in the Registration Statement, the Time of Sale
Prospectus or the Prospectus or except for such failures to comply
that would not, individually or in the aggregate, reasonably be
expected to interfere in any material respect with the use made and
proposed to be made of such property by the Company and its
Subsidiaries or otherwise have a Material Adverse Effect. None of
the Company or its Subsidiaries has received from any Governmental
Authorities any notice of any condemnation of, or zoning change
affecting, the properties of the Company and its Subsidiaries, and
the Company knows of no such condemnation or zoning change which is
threatened, except for such that would not reasonably be expected
to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or
otherwise have a Material Adverse Effect, individually or in the
aggregate.
(ff) Environmental
Laws. Except as set forth in the Registration Statement, the
Time of Sale Prospectus or the Prospectus, the Company and its
Subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign Laws relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
“Environmental
Laws”); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses as described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus; and (iii) have not received
notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except, in the
case of any of clauses (i), (ii) or (iii) above, for any such
failure to comply or failure to receive required permits, licenses,
other approvals or liability as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
-12-
(gg) Disclosure
Controls. The Company and each of its Subsidiaries maintain
systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal control over financial reporting is
effective, and the Company is not aware of any material weaknesses
in its internal control over financial reporting (in each case,
other than as set forth in the Registration Statement, Time of Sale
Prospectus or Prospectus). Since the date of the latest audited
financial statements of the Company included in the Prospectus,
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 (other than as set forth
in the Registration Statement, Time of Sale Prospectus or
Prospectus). The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for
the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company and each
of its Subsidiaries is made known to the certifying officers by
others within those entities, particularly during the period in
which the Company’s Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, is being prepared. The
Company’s certifying officers have evaluated the
effectiveness of the Company’s disclosure controls and
procedures as of a date within 90 days prior to the filing date of
the Form 10-K for the fiscal year ended December 31, 2019 (such
date, the “Evaluation Date”). The Company presented in
its Form 10-K for the fiscal year ended December 31, 2019 the
conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company’s internal
controls (as such term is defined in Item 307(b) of Regulation S-K
under the Securities Act) or, to the Company’s knowledge, in
other factors that could significantly affect the Company’s
internal controls, other than as set forth in the Registration
Statement, Time of Sale Prospectus and Prospectus.
(hh) Xxxxxxxx-Xxxxx.
There is and has been no failure on the part of the Company or any
of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable
provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations
promulgated thereunder. Each of the principal executive officer and
the principal financial officer of the Company (or each former
principal executive officer of the Company and each former
principal financial officer of the Company as applicable) has made
all certifications required by Sections 302 and 906 of the
Xxxxxxxx-Xxxxx Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it or
furnished by it to the Commission. For purposes of the preceding
sentence, “principal executive officer” and
“principal financial officer” shall have the meanings
given to such terms in the Xxxxxxxx-Xxxxx Act.
(ii) Brokers.
Neither the Company nor any of its Subsidiaries has incurred any
liability for any finder’s fees, brokerage commissions or
similar payments in connection with the transactions herein
contemplated, except as may otherwise exist with respect to or
pursuant to this Agreement.
-13-
(jj) Labor
Disputes. No labor disturbance by or dispute with employees
of the Company or any of its Subsidiaries exists or, to the
knowledge of the Company, is threatened which would reasonably be
expected to result in a Material Adverse Effect.
(kk) Investment
Company Act. Neither the Company nor any of its Subsidiaries
is, or will be, either after receipt of payment for the Offered
Shares or after the application of the proceeds therefrom as
described under “Use of Proceeds” in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, required
to register as an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940 (the
“Investment Company
Act”).
(ll) Operations.
The operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance in all material respects
with applicable financial record keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, the
money laundering Laws of all jurisdictions to which the Company or
its Subsidiaries are subject, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Authority
(collectively, the “Money
Laundering Laws”); and no action, suit or proceeding
by or before any Governmental Authority 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.
(mm) Off-Balance
Sheet Arrangements. There are no transactions, arrangements
and other relationships between and/or among the Company, and/or
any of its affiliates and any unconsolidated entity, including any
structural finance, special purpose or limited purpose entity
(each, an “Off-Balance Sheet
Transaction”) that could reasonably be expected to
affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those
Off-Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the
Prospectus which have not been described as required.
(nn) ERISA.
To the knowledge of the Company, each material employee benefit
plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974 (“ERISA”), that is maintained,
administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and any
of its Subsidiaries has been maintained in material compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including ERISA and the Internal Revenue
Code of 1986 (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred which would result in a material liability to
the Company with respect to any such plan, excluding transactions
effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no “accumulated
funding deficiency” as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued
but unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
-14-
(oo) Forward-Looking
Statements. Each financial or operational projection or
other “forward-looking statement” (as defined by
Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained in the Registration Statement, the Time of Sale
Prospectus or the Prospectus (i) was so included by the
Company in good faith and with reasonable basis after due
consideration by the Company of the underlying assumptions,
estimates and other applicable facts and circumstances and
(ii) is accompanied by meaningful cautionary statements
identifying those factors that could cause actual results to differ
materially from those in such forward-looking statement. No such
statement was made with the knowledge of an executive officer or
director of the Company that is was false or
misleading.
(pp) Margin
Rules. Neither the issuance, sale and delivery of the
Offered Shares nor the application of the proceeds thereof by the
Company as described in the Registration Statement and the
Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(qq) Insurance.
The Company and each of its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for
the conduct of their business and as is customary for companies
engaged in similar businesses in similar industries.
(rr) No
Improper Practices. (i) Neither the Company nor its
Subsidiaries, nor any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s knowledge, any agent,
affiliate or other person acting on behalf of the Company or any
Subsidiary has, in the past five years, made any unlawful
contributions to any candidate for any political office (or failed
fully to disclose any contribution in violation of applicable Law)
or made any contribution or other payment to any official of, or
candidate for, any federal, state, municipal, or foreign office or
other person charged with similar public or quasi-public duty in
violation of any applicable Law or of the character required to be
disclosed in the Prospectus; (ii) no relationship, direct or
indirect, exists between or among the Company or any Subsidiary or,
to the Company’s knowledge, any affiliate of any of them, on
the one hand, and the directors, officers and stockholders of the
Company or any Subsidiary, on the other hand, that is required by
the Securities Act to be described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus that is not so
described; (iii) no relationship, direct or indirect, exists
between or among the Company or any Subsidiary or, to the
Company’s knowledge, any affiliate of them, on the one hand,
and the directors, officers, or stockholders of the Company or any
Subsidiary, on the other hand, that is required by the rules of
FINRA to be described in the Registration Statement, the Time of
Sale Prospectus or the Prospectus that is not so described; (iv)
except as described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, there are no material
outstanding loans or advances or material guarantees of
indebtedness by the Company or any Subsidiary to or, to the
Company’s knowledge, for the benefit of any of their
respective officers or directors or any of the members of the
families of any of them; and (v) the Company has not offered, or
caused any placement agent to offer, Common Stock to any person
with the intent to influence unlawfully (A) a customer or
supplier of the Company or any Subsidiary to alter the
customer’s or supplier’s level or type of business with
the Company or any Subsidiary or (B) a trade journalist or
publication to write or publish favorable information about the
Company or any Subsidiary or any of their respective products or
services; and (vi) neither the Company nor any Subsidiary nor any
director, officer or employee of the Company or any Subsidiary nor,
to the Company’s knowledge, any agent, affiliate or other
person acting on behalf of the Company or any Subsidiary has (A)
violated or is in violation of any applicable provision of the U.S.
Foreign Corrupt Practices Act of 1977, or any other applicable
anti-bribery or anti-corruption Law (collectively,
“Anti-Corruption
Laws”), (B) promised, offered, provided, attempted to
provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or
retaining business, influencing any act or decision of the
recipient or securing any improper advantage, or (C) made any
payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any Anti-Corruption
Laws.
-15-
(ss) No
Conflicts. Neither the execution of this Agreement, nor the
issuance, offering or sale of the Offered Shares nor the
consummation of any of the transactions contemplated herein and
therein, nor the compliance by the Company with the terms and
provisions hereof and thereof will conflict with, or will result in
a breach of, any of the terms and provisions of, or has constituted
or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to
the terms of any contract or other agreement to which the Company
may be bound or to which any of the property or assets of the
Company is subject, except (i) such conflicts, breaches or defaults
as may have been waived and (ii) such conflicts, breaches and
defaults that would not reasonably be expected to have a Material
Adverse Effect; nor will such action result in (x) any violation of
the provisions of the organizational or governing documents of the
Company, or (y) any material violation of the provisions of any
statute or any order, rule or regulation applicable to the Company
or of any Governmental Authority having jurisdiction over the
Company.
(tt) Sanctions.
(i) The Company
represents that neither the Company nor any of its Subsidiaries
(collectively, the “Entity”) or any director, officer,
employee, agent, affiliate or representative of the Entity, is a
government, individual, or entity (in this paragraph (tt),
“Person”) that
is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control
(“OFAC”), the
United Nations Security Council, the European Union, Her
Majesty’s Treasury or other relevant sanctions authorities,
including designation on OFAC’s Specially Designated
Nationals and Blocked Persons List or OFAC’s Foreign
Sanctions Evaders List (as amended, collectively,
“Sanctions”),
nor
(B) located,
organized or resident in a country or territory that is the subject
of Sanctions that broadly prohibit dealings with that country or
territory (including Cuba, Iran, North Korea, Sudan, Syria and the
Crimea Region of the Ukraine) (the “Sanctioned
Countries”).
(ii) The
Entity represents and covenants that it will not, 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 Person:
(A) to
fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned
Country; or
(B) in
any other manner that will result in a violation of Sanctions by
any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or
otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the
Registration Statement and the Prospectus, for the past five years,
it has not engaged in, it is not now engaging in, and will not
engage in, any dealings or transactions with any Person, or in any
country or territory, that at the time of the dealing or
transaction is or was the subject of Sanctions or is or was a
Sanctioned Country.
-16-
(uu) Compliance
with Laws. Each of the Company and its Subsidiaries: (i) is
and at all times has been in compliance with all statutes, rules or
regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing,
labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any product manufactured or distributed by the
Company or its Subsidiaries (“Applicable Laws”), except as would
not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect; (ii) has not received any FDA
Form 483, notice of adverse finding, warning letter, untitled
letter or other correspondence or notice from the FDA or any other
Governmental Authority alleging or asserting noncompliance in any
material respect with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”); (iii) possesses
all material Authorizations, and such Authorizations are valid and
in full force and effect and are not in material violation of any
term of any such Authorizations; (iv) has not received notice of
any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any Governmental
Authority or third party alleging that any product operation or
activity is in material violation of any Applicable Laws or
Authorizations and has no knowledge that any such Governmental
Authority or third party is considering any such claim, litigation,
arbitration, action, suit, investigation or proceeding; (v) has not
received notice that any Governmental Authority has taken, is
taking or intends to take action to limit, suspend, modify or
revoke any Authorizations and has no knowledge that any such
Governmental Authority is considering such action; (vi) has filed,
obtained, maintained or submitted all material reports, documents,
forms, notices, applications, records, claims, submissions and
supplements or amendments as required by any Applicable Laws or
Authorizations and that all such reports, documents, forms,
notices, applications, records, claims, submissions and supplements
or amendments were complete and correct in all material respects on
the date filed (or were corrected or supplemented by a subsequent
submission); and (vii) has not, either voluntarily or
involuntarily, initiated, conducted or issued, or caused to be
initiated, conducted or issued, any recall, market withdrawal or
replacement, safety alert, post-sale warning, “dear
healthcare provider” letter, or other notice or action
relating to the alleged lack of safety or efficacy of any product
or any alleged material product defect or violation and, to the
Company’s knowledge, no third party has initiated, conducted
or intends to initiate any such notice or action.
(vv) Statistical
and Market-Related Data. All statistical, demographic and
market-related data included in the Registration Statement, the
Time of Sale Prospectus or the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate
or represent the Company’s good faith estimates that are made
on the basis of data derived from such sources.
(ww) Stock
Exchange Listing. The Common Stock registered pursuant to
Section 12(b) of the Exchange Act and are listed on The Nasdaq
Capital Market (“Nasdaq”), and the Company has
taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the Nasdaq, nor has the
Company received any written notification that the Commission or
the Nasdaq is contemplating terminating such registrations or
listing. To the Company’s knowledge, it is in compliance all
applicable listing requirements of Nasdaq.
-17-
(xx) Related-Party
Transactions. There are no business relationships or
related-party transactions involving the Company or any of its
Subsidiaries or any other person required to be described in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus that have not been described as required.
(yy) FINRA
Matters. All of the information provided to the Underwriters
or to counsel for the Underwriters by the Company, its counsel, its
officers and directors and the holders of any securities (debt or
equity) or options to acquire any securities of the Company in
connection with the offering of the Offered Shares is true,
complete, correct and any letters, filings or other supplemental
information provided to FINRA pursuant to FINRA Rules is true,
complete and correct.
(zz) Parties
to Lock-Up Agreements. The Company has furnished to the
Underwriters a letter agreement in the form attached hereto as
Exhibit A (the
“Lock-up
Agreement”) from each of the persons listed on
Exhibit B.
Such Exhibit B
lists under an appropriate caption the directors and executive
officers of the Company. If any
additional persons shall become directors or executive
officers of the Company prior to the
end of the Company Lock-up Period (as defined below), the Company
shall cause each such person, prior to or contemporaneously
with their appointment or election as a director or executive
officer of the Company, to execute and
deliver to the Underwriters a Lock-up
Agreement.
(aa) No
Rights to Purchase Preferred Stock. The issuance and sale of
the Shares as contemplated hereby will not cause any holder of any
shares of capital stock, securities convertible into or
exchangeable or exercisable for capital stock or options, warrants
or other rights to purchase capital stock or any other securities
of the Company to have any right to acquire any shares of preferred
stock of the Company.
(bb) No
Contract Terminations. Neither the Company nor any of its
Subsidiaries has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or
agreements referred to or described in the Registration Statement,
the Time of Sale Prospectus or the Prospectus, and no such
termination or non-renewal has been threatened by the Company or
any of its subsidiaries or, to the Company’s knowledge, any
other party to any such contract or agreement, which threat of
termination or non-renewal has not been rescinded as of the date
hereof.
(cc) Dividend
Restrictions. None of the Subsidiaries is prohibited or
restricted, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such
Subsidiary’s equity securities or from repaying to the
Company or any other Subsidiary of the Company any amounts that may
from time to time become due under any loans or advances to such
Subsidiary from the Company or from transferring any property or
assets to the Company or to any other Subsidiary.
Any
certificate signed by any officer of the Company or any of its
Subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering, or the purchase and
sale, of the Offered Shares shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters
covered thereby.
-18-
The
Company has a reasonable basis for making each of the
representations set forth in this Section 1. The Company
acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 6, counsel to the
Company and counsel to the Underwriters, will rely upon the
accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
2. Purchase, Sale and Delivery of the
Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company
agrees to issue and sell to the several Underwriters an aggregate
of 1,100,000 Firm Shares. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Underwriters agree,
severally and not jointly, to purchase from the Company the
respective number of Firm Shares set forth opposite their names on
Schedule A. The
purchase price per Firm Share to be paid by the several
Underwriters to the Company shall be $23.25 per share.
(b) The
First Closing Date. Delivery of certificates for the Firm
Shares to be purchased by the Underwriters and payment therefor
shall be made at the offices of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(or such other place as may be agreed to by the Company and the
Representative) at 10:00 a.m. Eastern time, on February 17, 2021,
or such other time and date not later than 1:00 p.m. Eastern time,
on February 17, 2021 as the Representative shall designate by
notice to the Company (the time and date of such closing are called
the “First Closing
Date”). The Company hereby acknowledges that
circumstances under which the Representative may provide notice to
postpone the First Closing Date as originally scheduled include,
but are not limited to, any determination by the Company or the
Representative to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the
provisions of Section 11.
(c) The
Option Shares; Option Closing Date. In addition, on the
basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein
set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an
aggregate of 165,000 Option Shares from the Company at the purchase
price per share to be paid by the Underwriters for the Firm Shares.
The option granted hereunder may be exercised at any time and from
time to time in whole or in part upon notice by the Representative
to the Company, which notice may be given at any time within 30
days from the date of this Agreement. Such notice shall set forth
(i) the aggregate number of Option Shares as to which the
Underwriters are exercising the option and (ii) the time, date and
place at which certificates for the Option Shares will be delivered
(which time and date may be simultaneous with, but not earlier
than, the First Closing Date; and in the event that such time and
date are simultaneous with the First Closing Date, the term
“First Closing
Date” shall refer to the time and date of delivery of
certificates for the Firm Shares and such Option Shares). Any such
time and date of delivery, if subsequent to the First Closing Date,
is called an “Option Closing
Date,” shall be determined by the Representative, and
shall not be earlier than three or later than five full Business
Days after delivery of such notice of exercise. If any Option
Shares are to be purchased, (A) each Underwriter agrees, severally
and not jointly, to purchase the number of Option Shares (subject
to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the
total number of Option Shares to be purchased as the number of Firm
Shares set forth on Schedule A opposite the name of
such Underwriter bears to the total number of Firm Shares and (B)
the Company agrees to sell the number of Option Shares set forth in
the paragraph “Introductory” of this Agreement (subject
to such adjustments to eliminate fractional shares as the
Representative may determine). The Representative may cancel the
option at any time prior to its expiration by giving written notice
of such cancellation to the Company.
-19-
(d) Public
Offering of the Offered Shares. The Representative hereby
advises the Company that the Underwriters intend to offer for sale
to the public, initially on the terms set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, their
respective portions of the Offered Shares as soon after this
Agreement has been executed as the Representative, in its sole
judgment, has determined is advisable and practicable.
(e) Payment
for the Offered Shares. (i) Payment for the Offered Shares
shall be made at the First Closing Date (and, if applicable, at
each Option Closing Date) by wire transfer of immediately available
funds to the order of the Company. (ii) It is understood that the
Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the Firm
Shares and any Option Shares the Underwriters have agreed to
purchase. Cantor, individually and not as the Representative of the
Underwriters, may (but shall not be obligated to) make payment for
any Offered Shares to be purchased by any Underwriter whose funds
shall not have been received by the Representative by the First
Closing Date or the applicable Option Closing Date, as the case may
be, for the account of such Underwriter, but any such payment shall
not relieve such Underwriter from any of its obligations under this
Agreement.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause
to be delivered to the Representative for the accounts of the
several Underwriters, certificates for the Firm Shares at the First
Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The Company shall also deliver, or cause to be delivered
through the facilities of DTC unless the Representative shall
otherwise instruct, to the Representative for the accounts of the
several Underwriters, certificates for the Option Shares the
Underwriters have agreed to purchase at the First Closing Date or
the applicable Option Closing Date, as the case may be, against the
irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. If the
Representative so elects, delivery of the Offered Shares may be
made by credit to the accounts designated by the Representative
through The Depository Trust Company’s full fast transfer or
DWAC programs. The certificates, if any, for the Offered Shares
shall be registered in such names and denominations as the
Representative shall have requested at least two full Business Days
prior to the First Closing Date (or the applicable Option Closing
Date, as the case may be) and shall be made available for
inspection on the Business Day preceding the First Closing Date (or
the applicable Option Closing Date, as the case may be) at a
location in New York City as the Representative may designate. Time
shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the
obligations of the Underwriters.
3. Additional
Covenants of the
Company.
The
Company further covenants and agrees with each Underwriter as
follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and
Prospectus.
The Company shall furnish to the Representative in New York City,
without charge, prior to 10:00 a.m. New York City time on the
Business Day next succeeding the date of this Agreement and during
the period when a prospectus relating to the Offered Shares is
required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any
similar rule) in connection with the sale of the Offered Shares, as
many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement
as the Representative may reasonably request.
-20-
(b) Representative’s
Review of Proposed Amendments and Supplements. During the
period when a prospectus relating to the Offered Shares is required
by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any
similar rule), the Company (i) will furnish to the Representative
for review, a reasonable period of time prior to the proposed time
of filing of any proposed amendment or supplement to the
Registration Statement, a copy of each such amendment or supplement
and (ii) will not amend or supplement the Registration Statement
without the Representative’s prior written consent (except,
in each case, for reports filed under the Exchange Act). Prior to
amending or supplementing any preliminary prospectus, the Time of
Sale Prospectus or the Prospectus (except for reports filed under
the Exchange Act), the Company shall furnish to the Representative
for review, a reasonable amount of time prior to the time of filing
or use of the proposed amendment or supplement, a copy of each such
proposed amendment or supplement. The Company shall not file or use
any such proposed amendment or supplement without the
Representative’s prior written consent. The Company shall
file with the Commission within the applicable period specified in
Rule 424(b) under the Securities Act any prospectus required to be
filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the
Representative for review, a reasonable amount of time prior to the
proposed time of filing or use thereof, a copy of each proposed
free writing prospectus or any amendment or supplement thereto
prepared by or on behalf of, used by or referred to by the Company,
and the Company shall not file, use or refer to any proposed free
writing prospectus or any amendment or supplement thereto without
the Representative’s prior written consent. The Company shall
furnish to each Underwriter, without charge, as many copies of any
free writing prospectus prepared by or on behalf of, used by or
referred to by the Company as such Underwriter may reasonably
request. If at any time when a prospectus is required by the
Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar
rule) in connection with the sale of the Offered Shares (but in any
event if at any time through and including the First Closing Date)
there occurred or occurs an event or development as a result of
which any free writing prospectus prepared by or on behalf of, used
by or referred to by the Company conflicted or would conflict with
the information contained in the Registration Statement or included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
prevailing at such time, not misleading, the Company shall promptly
amend or supplement such free writing prospectus so that the
statements in such free writing prospectus as so amended or
supplemented will not conflict with information contained in the
Registration Statement and will not include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
prevailing at such time, not misleading, as the case may be;
provided,
however, that prior
to amending or supplementing any such free writing prospectus, the
Company shall furnish to the Representative for review, a
reasonable amount of time prior to the proposed time of filing or
use thereof, a copy of such proposed amended or supplemented free
writing prospectus, and the Company shall not file, use or refer to
any such amended or supplemented free writing prospectus without
the Representative’s prior written consent.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any
action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that such Underwriter otherwise would
not have been required to file thereunder.
-21-
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus
is being used to solicit offers to buy the Offered Shares at a time
when the Prospectus is not yet available to prospective purchasers,
and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus
so that the Time of Sale Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when delivered to a prospective purchaser, not
misleading, or if any event shall occur or condition exist as a
result of which the Time of Sale Prospectus conflicts with the
information contained in the Registration Statement, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Time of Sale Prospectus to comply with applicable
Law, the Company shall (subject to Section 3(a) and Section 3(b))
promptly prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or
supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances when
delivered to a prospective purchaser, not misleading or so that the
Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the information contained in the Registration
Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable Law.
(f) Certain
Notifications and Required Actions. During the period when a
prospectus relating to the Offered Shares is required by the
Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar
rule), the Company shall promptly advise the Representative in
writing of: (i) the receipt of any comments of, or requests for
additional or supplemental information from, the Commission;
(ii) the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or
supplement to any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus or the Prospectus; (iii)
the time and date that any post-effective amendment to the
Registration Statement becomes effective; and (iv) the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto
or any amendment or supplement to any preliminary prospectus, the
Time of Sale Prospectus or the Prospectus or of any order
preventing or suspending the use of any preliminary prospectus, the
Time of Sale Prospectus, any free writing prospectus or the
Prospectus, or of any proceedings to remove, suspend or terminate
from listing or quotation the Common Stock from any securities
exchange upon which they are listed for trading or included or
designated for quotation, or of the threatening or initiation of
any proceedings for any of such purposes. If the Commission shall
enter any such stop order at any time, the Company will use its
commercially reasonable best efforts to obtain the lifting of such
order as soon as reasonably practicable. Additionally, the Company
agrees that it shall comply with all applicable provisions of
Rule 424(b), Rule 433 and Rule 430B under the Securities Act
and will use its reasonable efforts to confirm that any filings
made by the Company under Rule 424(b) or Rule 433 were received in
a timely manner by the Commission.
-22-
(g) Amendments
and Supplements to the Prospectus and Other Securities Act
Matters. If any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the
Prospectus so that the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered (whether
physically or through compliance with Rule 172 under the Securities
Act or any similar rule) to a purchaser, not misleading, or if in
the opinion of the Representative or counsel for the Underwriters
it is otherwise necessary to amend or supplement the Prospectus to
comply with applicable Law, the Company agrees (subject to Section
3(a) and Section 3(b)) to promptly prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and
to any dealer upon request, amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended
or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule) to a
purchaser, not misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable Law. Neither the
Representative’s consent to, nor delivery of, any such
amendment or supplement shall constitute a waiver of any of the
Company’s obligations under Section 3(a) or Section
3(b).
(h) Blue
Sky Compliance. The Company shall cooperate with the
Representative and counsel for the Underwriters to qualify or
register the Offered Shares for sale under (or obtain exemptions
from the application of) the state securities or blue sky Laws or
Canadian provincial securities Laws (or other foreign Laws) of
those jurisdictions designated by the Representative, shall comply
with such Laws and shall continue such qualifications,
registrations and exemptions in effect so long as required for the
distribution of the Offered Shares. The Company shall not be
required to qualify as a foreign corporation or to take any action
that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would
be subject to taxation as a foreign corporation. The Company will
advise the Representative promptly of the suspension of the
qualification or registration of (or any such exemption relating
to) the Offered Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any
such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the
Company shall use its best efforts to obtain the withdrawal thereof
as soon as reasonably practicable.
(i) Use
of Proceeds. The Company shall apply the net proceeds from
the sale of the Offered Shares sold by it in the manner described
under the caption “Use of Proceeds” in the Registration
Statement, the Time of Sale Prospectus and the
Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its
expense, a registrar and transfer agent for the Common
Stock.
(k) Earnings
Statement. The Company will make generally available to its
security holders and to the Representative as soon as practicable
an earnings statement (which need not be audited) covering a period
of at least twelve months beginning with the first fiscal quarter
of the Company commencing after the date of this Agreement that
will satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder, which
requirement may be satisfied by publicly filing the required
information on XXXXX.
-23-
(l) Continued
Compliance with Securities Laws. The Company will comply
with the Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Offered Shares as
contemplated by this Agreement, the Registration Statement, the Time
of Sale Prospectus and the Prospectus. Without limiting the
generality of the foregoing, the Company will, during the period
when a prospectus relating to the Offered Shares is required by the
Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar
rule), file on a timely basis with the Commission and the Nasdaq
all reports and documents required to be filed under the Exchange
Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of
issuance, the Offered Shares on the Nasdaq.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded
from the Internet. If requested by the Representative, the
Company shall cause to be prepared and delivered, at its expense,
within one Business Day from the effective date of this Agreement,
to the Representative, an “electronic Prospectus” to be used
in connection with the offering and sale of the Offered Shares. As
used herein, the term “electronic Prospectus” means a
form of Time of Sale Prospectus, and any amendment or supplement
thereto, that meets each of the following conditions: (i) it shall
be encoded in an electronic format, satisfactory to the
Representative, that may be transmitted electronically by the
Representative and the other Underwriters to offerees and
purchasers of the Offered Shares; (ii) it shall disclose the
same information as the paper Time of Sale Prospectus, except to
the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall
be replaced in the electronic Prospectus with a fair and accurate
narrative description or tabular representation of such material,
as appropriate; and (iii) it shall be in or convertible into a
paper format or an electronic format, satisfactory to the
Representative, that will allow investors to store and have
continuously ready access to the Time of Sale Prospectus at any
future time, without charge to investors (other than any fee
charged for subscription to the Internet as a whole and for on-line
time).
-24-
(o) Agreement
Not to Offer or Sell Additional Shares. During the period
commencing on and including the date hereof and continuing through
and including the 90th day following the date of the Prospectus
(such period, as extended as described below, being referred to
herein as the “Lock-up
Period”), the Company will not, without the prior
written consent of the Representative (which consent may be
withheld in its sole discretion), directly or indirectly: (i) sell,
offer to sell, contract to sell or lend any shares of its capital
stock or Related Securities (as defined below); (ii) effect any
short sale, or establish or increase any “put equivalent
position” (as defined in Rule 16a-1(h) under the Exchange
Act) or liquidate or decrease any “call equivalent
position” (as defined in Rule 16a-1(b) under the
Exchange Act) of any shares of its capital stock or Related
Securities; (iii) pledge, hypothecate or grant any security
interest in; (iv) in any other way transfer or dispose of any
shares of its capital stock or Related Securities; (v) enter
into any swap, hedge or similar arrangement or agreement that
transfers, in whole or in part, the economic risk of ownership of
any shares of its capital stock or Related Securities, regardless
of whether any such transaction is to be settled in securities, in
cash or otherwise; (vi) announce the offering of any shares of its
capital stock or Related Securities; (vii) file any registration
statement under the Securities Act in respect of any shares of its
capital stock or Related Securities (other than as contemplated by
this Agreement with respect to the Offered Shares); or (viii)
publicly announce the intention to do any of the foregoing;
provided,
however, that the
Company may (A) sell the Offered Shares, (B) issue shares of Common
Stock, options to purchase shares of Common Stock, restricted stock
units or other similar equity securities, or issue shares of Common
Stock upon exercise or conversion of options, restricted stock
units or similar equity securities, pursuant to any stock option,
stock bonus or other stock plan or arrangement described in the
Registration Statement, the Time of Sale Prospectus and the
Prospectus, but only if the holders of such shares of Common Stock
or options agree in writing with the Underwriters not to sell,
offer, dispose of or otherwise transfer any such shares or options
during the Lock-up Period without the prior written consent of
Cantor (which consent may be withheld in its sole discretion), (C)
issue shares of its capital stock or Related Securities in
connection with a transaction that includes a commercial
relationship (including joint ventures, marketing or distribution
arrangements, collaboration agreements or intellectual property
license agreements) or any acquisition of assets or not less than a
majority or controlling portion of the equity of another entity,
provided that (x) the aggregate number of securities issued
pursuant to this clause (C) shall not represent more than 5.0% of
the total number of then-outstanding Common Stock and (y) the
recipient of any such securities issued pursuant to this clause (C)
during the Lock-Up Period shall enter into an agreement
substantially in the form of Exhibit A hereto, (D) issue up to
30,000 shares of Common Stock to Rochal Industries, LLC
(“Rochal”)
pursuant to that certain Exclusive License Agreement, dated July 7,
2019, by and between the Company and Rochal, as amended, provided
that such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no
registration rights that require or permit the filing of any
registration statement in connection therewith during the Lock-Up
Period. “Related
Securities” shall mean any options or warrants or
other rights to acquire Shares or any securities exchangeable or
exercisable for or convertible into Shares, or to acquire other
securities or rights ultimately exchangeable or exercisable for, or
convertible into, Shares.
-25-
(p) Future
Reports to the Representative. During the period of five years
hereafter, the Company will furnish to the Representative, c/o
Cantor Xxxxxxxxxx & Co., at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Equity Capital Markets, with copies to Cantor
Xxxxxxxxxx & Co., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel: (i) as soon as practicable after the
end of each fiscal year, copies of the Annual Report of the Company
containing the balance sheet of the Company as of the close of such
fiscal year and statements of income,
stockholders’ equity and cash flows for the
year then ended and the opinion thereon of the Company’s
independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the
Company with the Commission, FINRA or any securities exchange; and
(iii) as soon as available, copies of any report or communication
of the Company furnished or made available generally to holders of
its capital stock; provided, however, that the requirements
of this Section 3(p) shall be satisfied to the extent that such
reports, statement, communications, financial statements or other
documents are available on XXXXX.
(q) Investment
Limitation. The Company shall not invest or otherwise use
the proceeds received by the Company from its sale of the Offered
Shares in such a manner as would require the Company or any of its
Subsidiaries to register as an investment company under the
Investment Company Act.
(r) No
Stabilization or Manipulation; Compliance with Regulation M.
The Company will not take, and will use its reasonable best efforts
to ensure that no affiliate of the Company will take, directly or
indirectly, without giving effect to activities by the
Underwriters, any action designed to or that might cause or result
in stabilization or manipulation of the price of the Shares or any
reference security with respect to the Shares, whether to
facilitate the sale or resale of the Offered Shares or otherwise,
and the Company will, and shall cause each of its affiliates to,
comply with all applicable provisions of Regulation M.
(s) Enforce
Lock-up Agreements. During the Lock-up Period, the Company
will enforce all agreements between the Company and any of its
security holders that restrict or prohibit, expressly or in
operation, the offer, sale or transfer of Shares or Related
Securities or any of the other actions restricted or prohibited
under the terms of the form of Lock-up Agreement. In addition, the
Company will direct the transfer agent to place stop transfer
restrictions upon any such securities of the Company that are bound
by such “lock-up” agreements for the duration of the
periods contemplated in such agreements, including
“lock-up” agreements entered into by the
Company’s officers, directors and stockholders pursuant to
Section 6(j) hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the First
Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriters, as soon as they have been prepared
by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to
the period covered by the most recent financial statements
appearing in the Registration Statement and the
Prospectus.
(u) Amendments
and Supplements to Permitted Rule 163B Communications. If at
any time following the distribution of any Permitted Rule 163B
Communication, there occurred or occurs an event or development as
a result of which such Permitted Rule 163B Communication included
or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing
at that subsequent time, not misleading, the Company will promptly
notify the Representative and will promptly amend or supplement, at
its own expense, such Permitted Rule 163B Communication to
eliminate or correct such untrue statement or
omission.
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The
Representative, on behalf of the several Underwriters, may, in its
sole discretion, waive in writing the performance by the Company of
any one or more of the foregoing covenants or extend the time for
their performance.
4. Payment of Expenses. The
Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including (i)
all expenses incident to the issuance and delivery of the Offered
Shares (including all printing and engraving costs); (ii) all fees
and expenses of the registrar and transfer agent of the Shares;
(iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Offered Shares to the
Underwriters; (iv) all fees and expenses of the Company’s
counsel, independent public or certified public accountants and
other advisors; (v) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution
of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), the
Time of Sale Prospectus, the Prospectus, each free writing
prospectus prepared by or on behalf of, used by, or referred to by
the Company, and each preliminary prospectus, each Permitted Rule
163B Communication, and all amendments and supplements thereto, and
this Agreement; (vi) all filing fees, attorneys’ fees and
expenses incurred by the Company or the Underwriters in connection
with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Offered
Shares for offer and sale under the state securities or blue sky
Laws or the provincial securities Laws of Canada, and, if requested
by the Representative, preparing and printing a “Blue Sky
Survey” or memorandum and a “Canadian wrapper,”
and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions; (vii) the documented
costs, fees and expenses incurred by the Underwriters in connection
with determining their compliance with the rules and regulations of
FINRA related to the Underwriters’ participation in the
offering and distribution of the Offered Shares, including any
related filing fees and the legal fees of, and disbursements by,
counsel to the Underwriters; (viii) the fees and expenses of the
Underwriters including the fees and expenses of the counsel to the
Underwriters, payable upon the execution of this Agreement,
provided, that the amount payable in respect of expenses of the
Underwriters pursuant to the foregoing clauses (vi) and (vii) and
this clause (viii) in the aggregate shall not exceed $250,000; (ix)
the costs and expenses of the Company relating to investor
presentations or any Road Show, any Permitted Rule 163B
Communication or any Rule 163B Oral Communication undertaken in
connection with the offering of the Shares, including expenses
associated with the preparation or dissemination of any electronic
Road Show, 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 with the prior
approval of the Company, travel and lodging expenses of the
Representative, employees and officers of the Company and any such
consultants; (x) all fees and expenses associated with listing the
Offered Shares on the Nasdaq; and (xi) all other fees, costs and
expenses of the nature referred to in Item 14 of Part II of the
Registration Statement. Any such amount payable to the Underwriters
may be deducted from the purchase price for the Offered Shares.
Except as provided in this Section 4 or in Section 7, Section 9 or
Section 10, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
5. Covenant of the Underwriters.
Each Underwriter severally and not jointly covenants with the
Company not to take any action that would result in the Company
being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or
on behalf of such Underwriter that otherwise would not, but for
such actions, be required to be filed by the Company under Rule
433(d).
-27-
6. Conditions of the Obligations of the
Underwriters. The respective obligations of the several
Underwriters hereunder to purchase and pay for the Offered Shares
as provided herein on the First Closing Date and, with respect to
the Option Shares, each Option Closing Date, shall be subject to
the accuracy of the representations and warranties on the part of
the Company set forth in Section 1 as of the date hereof and as of
the First Closing Date as though then made and, with respect to the
Option Shares, as of each Option Closing Date as though then made,
to the timely performance by the Company of its covenants and other
obligations hereunder, and to each of the following additional
conditions:
(a) Comfort
Letter. On the date hereof, the Representative shall receive
from MaloneBailey, LLP, independent registered public accountants
for the Company, a letter dated the date hereof addressed to the
Underwriters, in form and substance satisfactory to the
Representative, containing statements and information of the type
ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin), with respect
to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the
Time of Sale Prospectus, and each free writing prospectus, if
any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from
FINRA. For a period from and after the date of this
Agreement and through and including the First Closing Date and,
with respect to any Option Shares purchased after the First Closing
Date, each Option Closing Date:
(i) The Company shall
have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the
manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective
amendment to the Registration Statement containing the information
required by such Rule 430B, and such post-effective amendment shall
have become effective.
(ii) No
stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration
Statement shall be in effect, and no proceedings for such purpose
shall have been instituted or threatened by the
Commission.
(iii) FINRA
shall have raised no objection to the fairness and reasonableness
of the underwriting terms and arrangements.
(c) No
Material Adverse Effect or Ratings Agency Change. For the
period from and after the date of this Agreement and through and
including the First Closing Date and, with respect to any Option
Shares purchased after the First Closing Date, each Option Closing
Date, in the judgment of the Representative there shall not have
occurred any material adverse change in the authorized capital
stock of the Company or any Material Adverse Effect or any
development that would cause a Material Adverse Effect, or a
downgrading in or withdrawal of the rating assigned to any of the
Company’s securities (other than asset backed securities) by
any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of
any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by
a rating organization described above.
-28-
(d) Opinion
of Counsel for the Company. On each of the First Closing
Date and each Option Closing Date the Representative shall have
received the opinion and negative assurance letter of Xxxxxx and
Xxxxx, LLP, counsel for the Company, dated as of such date, in form
and substance satisfactory to the Representative.
(e) Certification
of Intellectual Property Matters. On each of the First
Closing Date and each Option Closing Date, the Representative shall
have received a certification from the Company with respect to
intellectual property matters, dated as of such date, in form and
substance satisfactory to the Representative.
(f) Opinion
of Counsel for the Underwriters. On each of the First
Closing Date and each Option Closing Date the Representative shall
have received the opinion of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., counsel for the Underwriters in connection with
the offer and sale of the Offered Shares, in form and substance
satisfactory to the Representative, dated as of such
date.
(g) Officers’
Certificate. On each of the First Closing Date and each
Option Closing Date, the Representative shall have received a
certificate executed by the Chief Executive Officer or President of
the Company and the Chief Financial Officer of the Company, dated
as of such date, to the effect set forth in Section 6(b)(ii) and
further to the effect that:
(i) for the period from
and including the date of this Agreement through and including such
date, there has not occurred any Material Adverse
Effect;
(ii) the
representations, warranties and covenants of the Company set forth
in Section 1 are true and correct with the same force and
effect as though expressly made on and as of such date;
and
(iii) the
Company has complied with all the agreements hereunder and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to such date.
(h) Chief
Financial Officer’s Certificate. On the date
hereof and on each of the First Closing Date and each Option
Closing Date, the Representative shall have received a certificate
executed by the Chief Financial Officer of the Company, dated as of
such date, in the form attached as Exhibit D hereto.
(i) Bring-down
Comfort Letter. On each of the First Closing Date and each
Option Closing Date the Representative shall have received from
MaloneBailey, LLP, independent registered public accountants for
the Company, a letter dated such date, in form and substance
satisfactory to the Representative, which letter shall: (i)
reaffirm the statements made in the letter furnished by them
pursuant to Section 6(a), except that the specified date referred
to therein for the carrying out of procedures shall be no more than
three Business Days prior to the First Closing Date or the
applicable Option Closing Date, as the case may be; and (ii) cover
certain financial information contained in the
Prospectus.
(j) Lock-Up
Agreements. On or prior to the date hereof, the Company
shall have furnished to the Representative an agreement in the form
of Exhibit A hereto
from the directors and executive officers (as defined in Rule
16a-1(f) under the Exchange Act), and each such agreement shall be
in full force and effect on each of the First Closing Date and each
Option Closing Date.
-29-
(k) Rule
462(b) Registration Statement. In the event that a Rule
462(b) Registration Statement is filed in connection with the
offering contemplated by this Agreement, such Rule 462(b)
Registration Statement shall have been filed with the Commission on
the date of this Agreement and shall have become effective
automatically upon such filing.
(l) Nasdaq.
The Company shall have submitted a listing of additional shares
notification form to Nasdaq with respect to the Offered Shares and
shall have received no objection thereto from Nasdaq.
(m) Additional
Documents. On or before each of the First Closing Date and
each Option Closing Date, the Representative and counsel for the
Underwriters shall have received such information, documents and
opinions as they may reasonably request for the purposes of
enabling them to pass upon the issuance and sale of the Offered
Shares as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Offered Shares as contemplated herein and in
connection with the other transactions contemplated by this
Agreement shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
If any
condition specified in this Section 6 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representative by notice from the Representative to the Company at
any time on or prior to the First Closing Date and, with respect to
the Option Shares, at any time on or prior to the applicable Option
Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4,
Section 7, Section 9 and Section 10 shall at all times be effective
and shall survive such termination.
7. Reimbursement of Underwriters’
Expenses. If this Agreement is terminated by the
Representative pursuant to Section 6, Section 11 or Section 12, or
if the sale to the Underwriters of the Offered Shares on the First
Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform any agreement
herein or to comply with any provision hereof, the Company agrees
to reimburse the Representative and the other Underwriters (or such
Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representative and
the Underwriters in connection with the proposed purchase and the
offering and sale of the Offered Shares, including fees and
disbursements of counsel, printing expenses, travel expenses,
postage, facsimile and telephone charges, subject to the
limitations set forth in Section 4.
8. Effectiveness of this
Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter, its affiliates and their respective
partners, members, directors, officers, employees and agents, and
each person, if any, who controls each Underwriter or any affiliate
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act as follows:
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(i) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred,
joint or several, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus, Time of Sale Prospectus, any free writing prospectus,
any Marketing Material, any Rule 163B Written Communication or the
Prospectus (or any amendment or supplement to the foregoing), or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever,
as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any Governmental Authority, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided
that (subject to Section 9(d)) any such settlement is effected
with the written consent of the Company, which consent shall not
unreasonably be delayed, conditioned or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation
or proceeding by any Governmental Authority, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission (whether or not a party), to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in
reliance upon and in conformity with the Underwriter Information
(as defined below).
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless
the Company, and its directors, each officer of the Company who
signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and
all loss, liability, claim, damage and expense described in the
indemnity contained in Section 9(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus, any Rule 163B Written Communication or the
Prospectus (or any amendment or supplement to the foregoing), in
reliance upon and in conformity with information relating to such
Underwriter and furnished to the Company in writing by such
Underwriter or Underwriters expressly for use therein. The Company
hereby acknowledges that the only information that the Underwriter
or Underwriters has furnished to the Company expressly for use in
the Registration Statement, any preliminary prospectus, the Time of
Sale Prospectus, any free writing prospectus, any Rule 163B Written
Communication or the Prospectus (or any amendment or supplement to
the foregoing) are the statements set forth in the first sentence
of the first paragraph under the caption “Underwriting
— Commission and Expenses” and the first sentences of
the first and second paragraphs under the caption
“Underwriting — Market Making, Stabilization and Other
Transactions” in the Preliminary Prospectus and Prospectus
(the “Underwriter
Information”).
-31-
(c) Notifications
and Other Indemnification Procedures. Any party that
proposes to assert the right to be indemnified under this Section 9
will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 9,
notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any
indemnified party otherwise than under this Section 9 and
(ii) any liability that it may have to any indemnified party
under the foregoing provision of this Section 9 unless, and only to
the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the
extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the
defense of, the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for
any other legal expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless
(A) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (B) the
indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (C) a conflict or
potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of
the indemnified party) or (D) the indemnifying party has not
in fact employed counsel to assume the defense of such action or
counsel reasonably satisfactory to the indemnified party, in each
case, within a reasonable time after receiving notice of the
commencement of the action; in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that
the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of
more than one separate firm admitted to practice in such
jurisdiction (plus local counsel) at any one time for all such
indemnified party or parties. All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly
as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without
the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending
or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified
party is a party thereto), unless such settlement, compromise or
consent (x) includes an express and unconditional release of
each indemnified party, in form and substance reasonably
satisfactory to such indemnified party, from all liability arising
out of such litigation, investigation, proceeding or claim and
(y) 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.
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(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 9(a)(ii)
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, (ii) such indemnifying party
shall have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date
of such settlement.
10. Contribution. In order to
provide for just and equitable contribution in circumstances in
which the indemnification provided for in the foregoing paragraphs
of Section 9 is applicable in accordance with its terms but for any
reason is held to be unavailable or insufficient from the Company
or the Underwriters, the Company and the Underwriters will
contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim
asserted) to which any indemnified party may be subject in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to
be in the same proportion as the total net proceeds from the sale
of the Offered Shares (before deducting expenses) received by the
Company bear to the total compensation received by the Underwriters
(before deducting expenses) from the sale of Offered Shares on
behalf of the Company. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable Law, the
allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to
in the foregoing sentence but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other hand,
with respect to the statements or omission that resulted in such
loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this Section 10 were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above
in this Section 10 shall be deemed to include, for the purpose of
this Section 10, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim to the extent consistent with
Section 9(c). Notwithstanding the foregoing provisions of Section 9
and this Section 10, the Underwriters shall not be required to
contribute any amount in excess of the commissions actually
received by it under this Agreement and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 10, any person who controls a party to
this Agreement within the meaning of the Securities Act, any
affiliates of the respective Underwriters and any officers,
directors, partners, employees or agents of the Underwriters or
their respective affiliates, will have the same rights to
contribution as that party, and each director of the Company and
each officer of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for
contribution may be made under this Section 10, will notify any
such party or parties from whom contribution may be sought, but the
omission to so notify will not relieve that party or parties from
whom contribution may be sought from any other obligation it or
they may have under this Section 10 except to the extent that the
failure to so notify such other party materially prejudiced the
substantive rights or defenses of the party from whom contribution
is sought. Except for a settlement entered into pursuant to the
last sentence of Section 9(c), no party will be liable for
contribution with respect to any action or claim settled without
its written consent if such consent is required pursuant to Section
9(c).
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11. Default of One or More of the Several
Underwriters. If, on the First Closing Date or any Option
Closing Date, any one or more of the several Underwriters shall
fail or refuse to purchase Offered Shares that it or they have
agreed to purchase hereunder on such date, and the aggregate number
of Offered Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Offered Shares to be purchased on such
date, the Representative may make arrangements satisfactory to the
Company for the purchase of such Offered Shares by other persons,
including any of the Underwriters, but if no such arrangements are
made by such date, the other Underwriters shall be obligated,
severally and not jointly, in the proportions that the number of
Firm Shares set forth opposite their respective names on
Schedule A bears to
the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions
as may be specified by the Representative with the consent of the
non-defaulting Underwriters, to purchase the Offered Shares which
such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date. If, on the First Closing Date or
any Option Closing Date, any one or more of the several
Underwriters shall fail or refuse to purchase Offered Shares that
it or they have agreed to purchase hereunder on such date, and the
aggregate number of Offered Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase exceeds 10% of the aggregate number of Offered Shares to
be purchased on such date, and arrangements satisfactory to the
Representative and the Company for the purchase of such Offered
Shares are not made within 48 hours after such default, this
Agreement shall terminate without liability of any party to any
other party except that the provisions of Section 4, Section 7,
Section 9 and Section 10 shall at all times be effective and shall
survive such termination. In any such case either the
Representative or the Company shall have the right to postpone the
First Closing Date or the applicable Option Closing Date, as the
case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Registration Statement
and the Prospectus or any other documents or arrangements may be
effected.
As used
in this Agreement, the term “Underwriter” shall be deemed to
include any person substituted for a defaulting Underwriter under
this Section 11. Any action taken under this Section 11 shall not
relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
12. Termination of this Agreement.
Prior to the purchase of the Firm Shares by the Underwriters on the
First Closing Date, this Agreement may be terminated by the
Representative by notice given to the Company if at any time: (i)
trading or quotation in any of the Company’s securities shall
have been suspended or limited by the Commission or by the Nasdaq,
or trading in securities generally on either the Nasdaq or the NYSE
shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock
exchanges; (ii) a general banking moratorium shall have been
declared by any of federal, New York or Texas authorities; (iii)
there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any
substantial change or development involving a prospective
substantial change in United States’ or international
political, financial or economic conditions, as in the sole
judgment of the Representative is material and adverse and makes it
impracticable to market the Offered Shares in the manner and on the
terms described in the Time of Sale Prospectus or the Prospectus or
to enforce contracts for the sale of securities; (iv) in the sole
judgment of the Representative there shall have occurred any
change, or any development or event involving a prospective change,
in the condition, financial or otherwise, or in the business,
properties, earnings, results of operations or prospects of the
Company and its Subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business; or (v) the
Company shall have sustained a loss by strike, fire, flood,
earthquake, accident or other calamity of such character as in the
sole judgment of the Representative may interfere materially with
the conduct of the business and operations of the Company
regardless of whether or not such loss shall have been insured. Any
termination pursuant to this Section 12 shall be without liability
on the part of (A) the Company to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the
Representative and the Underwriters pursuant to Section 4 or
Section 7 hereof or (B) any Underwriter to the Company;
provided,
however, that the
provisions of Section 9 and Section 10 shall at all times be
effective and shall survive such termination.
-34-
13. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (a)
the purchase and sale of the Offered Shares pursuant to this
Agreement, including the determination of the public offering price
of the Offered Shares and any related discounts and commissions, is
an arm’s-length commercial transaction between the Company,
on the one hand, and the several Underwriters, on the other hand;
(b) in connection with the offering contemplated hereby and the
process leading to such transaction, each Underwriter is and has
been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, or its creditors, employees or
any other party; (c) no Underwriter has assumed or will assume 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) and no Underwriter
has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in
this Agreement; (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company; and (e)
the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed
appropriate.
14. Representations and Agreements to
Survive Delivery. The respective indemnities, agreements,
representations, warranties and other statements of the Company,
its officers and the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners,
affiliates, officers, directors or employees or any controlling
person, as the case may be, and, anything herein to the contrary
notwithstanding, will survive delivery of and payment for the
Offered Shares sold hereunder and any termination of this
Agreement.
15. Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as
follows:
If to
the Representative:
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Facsimile: (000)
000-0000
Attention: General
Counsel
with a
copy to:
Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxx
Xxxx
If to
the Company:
Sanara
MedTech, Inc.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
Attention: Xxxxxxx
X. XxXxxx
with a
copy to:
Xxxxxx
and Xxxxx, LLP
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxx
-35-
Each
party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose. Each such notice or other communication
shall be deemed given (i) when delivered personally or by
verifiable electronic transmission (with an original to follow) on
or before 4:30 p.m., New York City time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a
nationally-recognized overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail
(certified or registered mail, return receipt requested, postage
prepaid).
16. Electronic Notice. An
electronic communication (“Electronic Notice”) shall be
deemed written notice for purposes of this Section 16 if sent to
the electronic mail address specified by the receiving party under
separate cover. Electronic Notice shall be deemed received at the
time the party sending Electronic Notice receives verification of
receipt by the receiving party. Any party receiving Electronic
Notice may request and shall be entitled to receive the notice on
paper, in a nonelectronic form (“Nonelectronic Notice”) which shall
be sent to the requesting party within ten (10) days of receipt of
the written request for Nonelectronic Notice.
17. Successors and Assigns. This
Agreement shall inure to the benefit of and be binding upon the
Company and the Underwriters and their respective successors and
the parties referred to in Section 11. References to any of the
parties contained in this Agreement shall be deemed to include the
successors and permitted assigns of such party. Nothing in this
Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided
in this Agreement. Neither party may assign its rights or
obligations under this Agreement without the prior written consent
of the other party; provided, however, that the
Representative may assign its rights and obligations hereunder to
an affiliate thereof without obtaining the Company’s
consent.
18. Partial Unenforceability. The
invalidity or unenforceability of any section, paragraph or
provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes)
as are necessary to make it valid and enforceable.
19. Entire Agreement; Amendment;
Severability; Waiver. This Agreement (including all
schedules and exhibits attached hereto issued pursuant hereto)
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral,
among the parties hereto with regard to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended except
pursuant to a written instrument executed by the Company and the
Representative. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable as written by a court of
competent jurisdiction, then such provision shall be given full
force and effect to the fullest possible extent that it is valid,
legal and enforceable, and the remainder of the terms and
provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only
to the extent that giving effect to such provision and the
remainder of the terms and provisions hereof shall be in accordance
with the intent of the parties as reflected in this Agreement. No
implied waiver by a party shall arise in the absence of a waiver in
writing signed by such party. No failure or delay in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right,
power, or privilege hereunder.
-36-
20. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY 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.
21. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT
TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM
OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT
FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY
WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY
LAW.
22. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed Agreement by one
party to the other may be made by electronic
transmission.
23. Construction.
(a) The section and
exhibit headings herein are for convenience only and shall not
affect the construction hereof;
(b) words defined in
the singular shall have a comparable meaning when used in the
plural, and vice versa;
(c) the words
“hereof,” “hereto,” “herein”
and “hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole and not
to any particular provision of this Agreement;
(d) wherever the word
“include,” “includes” or
“including” is used in this Agreement, it shall be
deemed to be followed by the words “without
limitation”;
-37-
(e) references herein
to any gender shall include each other gender;
(f) references herein
to any law, statute, ordinance, code, regulation, rule or other
requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other
requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from
time to time and also to all rules and regulations promulgated
thereunder;
(g) if the last day for
the giving of any notice or the performance of any act required or
permitted under this Agreement is a day that is not a Business Day,
then the time for the giving of such notice or the performance of
such action shall be extended to the next succeeding Business
Day;
(h) “knowledge” means, as it pertains
to the Company, the actual knowledge of the officers and directors
of the Company, together with the knowledge which such officers and
directors would have had if they had conducted a reasonable inquiry
of the relevant persons into the relevant subject
matter;
(i) “Governmental
Authority” means
(i) any federal, provincial, state, local, municipal, national or
international government or governmental authority, regulatory or
administrative agency, governmental commission, department, board,
bureau, agency or instrumentality, court, tribunal, arbitrator or
arbitral body (public or private); (ii) any self-regulatory
organization; or (iii) any political subdivision of any of the
foregoing;
(j) “Law” means any and all laws,
including all federal, state, local, municipal, national or foreign
statutes, codes, ordinances, guidelines, decrees, rules,
regulations and by-laws and all judicial, arbitral, administrative,
ministerial, departmental or regulatory judgments, orders,
directives, decisions, rulings or awards or other requirements of
any Governmental Authority, binding on or affecting the person
referred to in the context in which the term is used and rules,
regulations and policies of any stock exchange on which securities
of the Company are listed for trading; and
(k) “Business Day” means any day on
which the Nasdaq and commercial banks in the City of New York are
open for business.
24. General
Provisions.
Each of
the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including the
indemnification provisions of Section 9 and the contribution
provisions of Section 10, and is fully informed regarding said
provisions. Each of the parties hereto further acknowledges that
the provisions of Section 9 and Section 10 hereof fairly allocate
the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that
adequate disclosure has been made in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, each free
writing prospectus and the Prospectus (and any amendments and
supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
[Signature
Page Follows]
-38-
If the
foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company and the
Underwriters.
Very
truly yours,
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxxx X. XxXxxx
|
|
|
Name: Xxxxxxx
X. XxXxxx
|
|
|
Title: Chief
Financial Officer
|
ACCEPTED as of the
date first-above written:
|
CANTOR
XXXXXXXXXX & CO.
|
|
|
|
|
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By:
|
/s/
Xxxx Xxxxx
|
|
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Name: Xxxx
Xxxxx
|
|
|
Title: Global
Head of Investment Banking
|
For
itself and the other several Underwriters named in Schedule A to this
Agreement.
SCHEDULE A
|
Underwriters
|
Number
of
Firm
Shares
to
be Purchased
|
|
Cantor Xxxxxxxxxx
& Co..
|
1,100,000
|
|
Total
|
1,100,000
|
SCHEDULE B
Free Writing Prospectuses Included in the Time of Sale
Prospectus
None.
SCHEDULE C
Pricing Information
Firm
Shares: 1,100,000
Option
Shares: 165,000
Price
to Public: $25.00
Underwriters’
Discount: $1.75
SCHEDULE D
Permitted Rule 163B Communications
None
Exhibit A
Form of Lock-up Agreement
Form
of Lock-up Agreement
Cantor
Xxxxxxxxxx & Co.
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Equity Capital Markets
Re: Proposed Public Offering by Sanara MedTech Inc.
Ladies
and Gentlemen:
The
undersigned, a securityholder and/or officer and/or a director of
Sanara MedTech Inc., a Texas corporation (the “Company”), understands
that the Company proposes to enter into an Underwriting Agreement
(the “Underwriting
Agreement”) with Cantor Xxxxxxxxxx & Co., as
representative (the “Representative”) of the
several underwriters named therein (the “Underwriters”) relating
to the proposed public offering (the “Offering”) of shares of
the Company’s common stock, par value $0.001 per share (the
“Common
Stock”). The undersigned acknowledges that the
Underwriters are relying on the representations and agreements of
the undersigned contained in this lock-up agreement in conducting
the Offering and, at a subsequent date, in entering into the
Underwriting Agreement and other underwriting arrangements with the
Company with respect to the Offering.
In
recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder and/or officer and/or a director of
the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees that, during the period beginning on the date
hereof and ending on the date that is 90 days from the date of the
Underwriting Agreement (the “Lock-Up Period”), the
undersigned will not (and will cause any immediate family member
not to), without the prior written consent of the Representative,
which may withhold its consent in its sole discretion, directly or
indirectly, (i) sell, offer to sell, contract to sell or lend,
effect any short sale or establish or increase a Put Equivalent
Position (as defined in Rule 16a-1(h) under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”)) or
liquidate or decrease any Call Equivalent Position (as defined in
Rule 16a-1(b) under the Exchange Act), pledge, hypothecate or grant
any security interest in, or in any other way transfer or dispose
of, any Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, in each case whether
now owned or hereafter acquired by the undersigned or with respect
to which the undersigned has or hereafter acquires the power of
disposition (collectively, the “Lock-Up Securities”),
(ii) make any demand for, or exercise any right with respect to,
the registration of any of the Lock-Up Securities, or the filing of
any registration statement, prospectus or prospectus supplement (or
an amendment or supplement thereto) in connection therewith, under
the Securities Act of 1933, as amended, (iii) enter into any
swap, hedge or any other agreement or any transaction that
transfers, in whole or in part, the economic consequence of
ownership of the Lock-Up Securities, whether any such swap or
transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, or (iv) publicly announce the
intention to do any of the foregoing.
Notwithstanding the
foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities pursuant to clauses
(i) through (viii) below without the prior written
consent of the Representative, provided that, in the case of
clauses (i) through (iv) below, (1) prior to any such
transfer, the Representative receives a signed lock-up agreement,
substantially in the form of this lock-up agreement, for the
balance of the Lock-Up Period from each donee, trustee, distributee
or transferee, as the case may be, (2) any such transfer shall
not involve a disposition for value, (3) in the case of
clauses (i) through (iii) below, such transfers are not
required to be reported with the Securities and Exchange Commission
under the Exchange Act, and (4) the undersigned does not
otherwise voluntarily effect any public filing or report regarding
such transfers:
(i) as
a bona fide gift or gifts; or
(ii) to
any trust for the direct or indirect benefit of the undersigned or
the immediate family of the undersigned; or
(iii) pursuant
to a qualified domestic order or in connection with a divorce
settlement; or
(iv) by
will or intestate succession to the legal representative, heir,
beneficiary or immediate family of the undersigned upon the death
of the undersigned; or
(v) the
establishment of a trading plan pursuant to Rule 10b5-1 promulgated
under the Exchange Act, provided that (i) such plan does not
provide for the transfer of Lock-Up Securities during the Lock-Up
Period and (ii) no filing or public announcement under the Exchange
Act or otherwise is required or voluntarily made by or on behalf of
the undersigned or the Company in connection with the establishment
of such plan; or
(vi) transfers
of shares of Common Stock acquired in open market transactions
after the completion of the Offering; or
(vii) pursuant
to a bona fide third-party tender offer, merger, consolidation or
other similar transaction made to all holders of Common Stock and
involving a Change of Control of the Company, provided that in the
event that such tender offer, merger, consolidation or other
similar transaction is not completed, the Common Stock owned by the
undersigned shall remain subject to the restrictions contained in
this lock-up agreement; or
(viii)
to the Company for the sole purpose of paying taxes (including
estimated taxes) due as a result of the exercise, vesting or
settlement of outstanding options, warrants, restricted stock,
restricted stock units or other equity interests granted pursuant
to employee benefit plans disclosed, or incorporated by reference,
in the prospectus supplement relating to the Offering, provided
that if the undersigned is required to file a report under Section
16(a) of the Exchange Act during the Lock-Up Period regarding such
transfer, the undersigned shall include a statement in any such
report to the effect that such transfer was solely pursuant to the
circumstances described in this clause (viii).
The
undersigned further agrees that the foregoing provisions shall be
equally applicable to any Common Stock the undersigned may purchase
or otherwise receive in the Offering.
The
undersigned also agrees and consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar
against the transfer of the Lock-Up Securities except in compliance
with the foregoing restrictions.
With
respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities
Act of the offer and sale of any shares of Common Stock and/or any
options or warrants or other rights to acquire Common Stock or any
securities exchangeable or exercisable for or convertible into
Common Stock, or to acquire other securities or rights ultimately
exchangeable or exercisable for or convertible into Common Stock,
owned either of record or beneficially by the undersigned,
including any rights to receive notice of the
Offering.
The
undersigned confirms that the undersigned has not, and has no
knowledge that any immediate family member has, directly or
indirectly, taken any action designed to or that might reasonably
be expected to cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale
of the Common Stock. The undersigned will not take, and will cause
any immediate family member not to take, directly or indirectly,
any such action.
As used
herein, “immediate family” shall mean the spouse,
domestic partner, lineal descendant, father, mother, brother,
sister, or any other person with whom the undersigned has a
relationship by blood, marriage or adoption not more remote than
first cousin. As used herein, “Change of Control” shall
mean the consummation of any bona fide third-party tender offer,
merger, consolidation or other similar transaction the result of
which is that any person (as defined in Section 13(d)(3) of the
Exchange Act) or group of persons becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than
50% of the total voting power of the Company’s voting
stock.
The
undersigned represents and warrants that the undersigned has full
power, capacity and authority to enter into this lock-up agreement.
This lock-up agreement is irrevocable and will be binding on the
undersigned and the successors, heirs, personal representatives and
assigns of the undersigned.
The
undersigned acknowledges and agrees that none of the Underwriters
has made any recommendation or provided any investment or other
advice to the undersigned with respect to this lock-up agreement or
the subject matter hereof, and the undersigned has consulted its
own legal, accounting, financial, regulatory, tax and other
advisors with respect to this lock-up agreement and the subject
matter hereof to the extent the undersigned has deemed
appropriate.
This
lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Whether
or not the Offering actually occurs depends on a number of factors,
including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are
subject to negotiation between the Company and the
Underwriters.
This
lock-up agreement shall automatically terminate, and the
undersigned shall be released from its obligations hereunder, upon
the earliest to occur, if any, of (i) the Company advising the
Representative in writing, prior to the execution of the
Underwriting Agreement, that it has determined not to proceed with
the Offering, (ii) the executed Underwriting Agreement being
terminated prior to the closing of the Offering (other than the
provisions thereof that survive termination), and (iii) April 30,
2021, in the event that the Underwriting Agreement has not been
executed by such date.
[Signature
Page Follows]
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Very
truly yours,
___________________________________
Name
of Securityholder/Director/Officer
(Print exact
name)
By:
_________________________________
Signature
If
not signing in an individual capacity:
___________________________________
Name of Authorized Signatory (Print)
___________________________________
Title of Authorized Signatory (Print)
Exhibit B
Parties to Lock-up Agreement
Directors
and executive officers of the Company
