PLACEMENT AGENCY AGREEMENT
Exhibit 10.1
October
11, 2019
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Ladies
and Gentlemen:
Introduction. Subject to the terms and
conditions herein (this “Agreement”), Aytu
BioScience, Inc., a Delaware corporation (the “Company”), hereby agrees
to sell up to an aggregate of $10,000,000 of securities of the
Company, including, but not limited to unregistered shares of
Series F Convertible Preferred Stock (the “Preferred Stock”), and
Common Stock Purchase Warrants (the “Warrants”) and the shares
of Common Stock issuable upon exercise of the Warrants (the
“Warrant
Shares”) (the Shares, Preferred Stock, the shares of
Common Stock underlying the Preferred Stock, the Warrants, and the
Warrant Shares, collectively, the “Securities”) directly to
various investors (each, an “Investor” and,
collectively, the “Investors”) through
Ladenburg Xxxxxxxx & Co. Inc. (the “Placement Agent”) as
placement agent. The documents executed and delivered by the
Company and the Investors in connection with the Offering (as
defined below), including, without limitation, a securities
purchase agreement(s) (the “Purchase Agreement”),
shall be collectively referred to herein as the “Transaction Documents.”
The Placement Agent may retain other brokers or dealers to act as
sub-agents or selected-dealers on its behalf in connection with the
Offering (as defined below).
The
Company hereby confirms its agreement with the Placement Agent as
follows:
Section
1. Agreement to Act as Placement
Agent.
(a) On the basis of the
representations, warranties and agreements of the Company herein
contained, and subject to all the terms and conditions of this
Agreement, the Placement Agent shall be the exclusive placement
agent in connection with the offering and sale by the Company of
the Securities, with the terms of such offering (the
“Offering”) to be subject
to market conditions and negotiations between the Company, the
Placement Agent and the prospective Investors. The Placement Agent
will act on a reasonable best efforts basis and the Company agrees
and acknowledges that there is no guarantee of the successful
placement of the Securities, or any portion thereof, in the
prospective Offering. Under no circumstances will the Placement
Agent or any of its “Affiliates” (as defined below) be
obligated to underwrite or purchase any of the Securities for its
own account or otherwise provide any financing. The Placement Agent
shall act solely as the Company’s agent and not as principal.
The Placement Agent shall have no authority to bind the Company
with respect to any prospective offer to purchase Securities and
the Company shall have the sole right to accept offers to purchase
Securities and may reject any such offer, in whole or in part.
Subject to the terms and conditions hereof, payment of the purchase
price for, and delivery of, the Securities shall be made at one or
more closings (each a “Closing” and the date on
which each Closing occurs, a “Closing Date”). As
compensation for services rendered, on each Closing Date, the
Company shall pay to the Placement Agent the fees and expenses set
forth below:
(i) A cash fee equal to
8% of the gross proceeds received by the Company from the sale of
the Securities at the closing of the Offering (the
“Closing”), subject to
reduction to 5% pursuant to the terms of the Investment Banking
Agreement (as defined below).
(ii) The
Company also agrees to reimburse Placement Agent’s expenses
(with supporting invoices/receipts) up to $65,000, which shall be
payable immediately upon (but only in the event of) a Closing of
the Offering, provided that such expense cap in no way limits or
impairs the indemnification and contribution provisions of this
Agreement.
(b) The term of the
Placement Agent's exclusive engagement will be as provided in
Section 2 of that certain Investment Banking Agreement dated June
14, 2019 between the Company and the Placement Agent (the
“Investment Banking
Agreement”). Notwithstanding anything to the contrary
contained herein, the provisions concerning confidentiality,
indemnification and contribution contained herein and the
Company’s obligations contained in the indemnification
provisions will survive any expiration or termination of this
Agreement, and the Company’s obligation to pay fees actually
earned and payable and to reimburse expenses actually incurred and
reimbursable pursuant to Section 1 hereof and which are permitted
to be reimbursed under FINRA Rule 5110(f)(2)(D)(i), will survive
any expiration or termination of this Agreement. Nothing in this
Agreement shall be construed to limit the ability of the Placement
Agent or its Affiliates to pursue, investigate, analyze, invest in,
or engage in investment banking, financial advisory or any other
business relationship with Persons (as defined below) other than
the Company. As used herein (i) “Persons” means an
individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind and (ii)
“Affiliate” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person as such
terms are used in and construed under Rule 405 under the Securities
Act of 1933, as amended (the “Securities
Act”).
Section
2. Representations, Warranties and Covenants of
the Company. The Company hereby represents, warrants and
covenants to the Placement Agent as of the date hereof, and as of
each Closing Date, as follows:
(a) Authorization; Enforcement. The
Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this
Agreement and the Transaction Documents and otherwise to carry out
its obligations hereunder and thereunder. The execution and
delivery of each of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby and
thereby and under the Transaction Documents have been duly
authorized by all necessary action on the part of the Company and
no further action is required by the Company, the Company’s
Board of Directors (the “Board of Directors”) or
the Company’s stockholders in connection therewith other than
in connection with the Required Approvals (as defined in the
Purchase Agreement). This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms hereof,
will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or
other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable
law.
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(b) No Conflicts. The execution,
delivery and performance by the Company of this Agreement and the
transactions contemplated pursuant to the Transaction Documents,
the issuance and sale of the Securities and the consummation by it
of the transactions contemplated hereby and thereby to which it is
a party do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time
or both would become a default) under, result in the creation of
any Lien (as defined in the Purchase Agreement) upon any of the
properties or assets of the Company or any Subsidiary, or give to
others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset
of the Company or a Subsidiary is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or
reasonably be expected to result in a Material Adverse Effect (as
defined in the Purchase Agreement).
(c) Certificates. Any certificate
signed by an officer of the Company and delivered to
the Placement Agent or to counsel for the Placement Agent
shall be deemed to be a representation and warranty by the Company
to the Placement Agent as to the matters set forth
therein.
(d) Reliance.
The Company acknowledges that the Placement Agent will rely
upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(e) FINRA Affiliations. There are
no affiliations with any FINRA member firm that is participating in
the Registered Offering among the Company’s officers or
directors.
(f) Private
Placement. Assuming the accuracy of the Investors’
representations and warranties set forth in Purchase Agreement, no
registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Investors as
contemplated in the Transaction Documents. The issuance and sale of
the Securities pursuant to the Transaction Documents does not
contravene the rules and regulations of the Trading
Market.
(g) No
General Solicitation. Neither the Company nor any Person
acting on behalf of the Company has offered or sold any of the
Securities by any form of general solicitation or general
advertising. The Company has offered the Securities for sale only
to the Investors and certain other “accredited
investors” within the meaning of Rule 501 under the
Securities Act,
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(h) No
Disqualification Events. With respect to the
Securities to be offered and sold pursuant to the Transaction
Documents in reliance on Rule 506 under the Securities Act, none of
the Company, any of its predecessors, any affiliated issuer, any
director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of
20% or more of the Company’s outstanding voting equity
securities, calculated on the basis of voting power, nor any
promoter (as that term is defined in Rule 405 under the Securities
Act) connected with the Company in any capacity at the time of sale
(each, an “Issuer
Covered Person” and, together, “Issuer Covered Persons”)
is subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification
Event”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a
Disqualification Event. The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and
has furnished to the Investors a copy of any disclosures provided
thereunder.
(i) Other
Covered Persons. Other than the Placement Agent, the Company
is not aware of any person that has been or will be paid (directly
or indirectly) remuneration for solicitation of purchasers in
connection with the sale of the Securities
(j) Notice
of Disqualification Events. The Company will notify the
Placement Agent in writing, prior to the Closing Date of (i) any
Disqualification Event relating to any Issuer Covered Person and
(ii) any event that would, with the passage of time, reasonably be
expected to become a Disqualification Event relating to any Issuer
Covered Person.
(k) Representations
and Warranties Incorporated by Reference. Each of the
representations and warranties (together with any related
disclosure schedules thereto) made by the Company to the Investors
in the Purchase Agreement is hereby incorporated herein by
reference (as though fully restated herein) and is hereby made to,
and in favor of, the Placement Agent.
Section
3. Delivery and Payment. Each Closing shall
occur at the offices of Ellenoff Xxxxxxxx & Schole LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Placement Agent
Counsel”) (or at such other place as shall be agreed
upon by the Placement Agent and the Company). Subject to the terms
and conditions hereof, at each Closing payment of the purchase
price for the Securities sold on such Closing Date shall be made by
Federal Funds wire transfer, against delivery of such Securities,
and such Securities shall be registered in such name or names and
shall be in such denominations, as the Placement Agent may request
at least one business day before the time of purchase (as defined
below).
Deliveries of the
documents with respect to the purchase of the Securities, if any,
shall be made at the offices of Placement Agent Counsel. All
actions taken at a Closing shall be deemed to have occurred
simultaneously.
Section
4. Covenants and Agreements of the Company.
The Company further covenants and agrees with the Placement Agent
as follows:
(a) Securities Laws Disclosure;
Publicity. The Company shall (a) by 9:00 a.m. (New York City
time) on the Trading Day immediately following the date hereof,
issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on
Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange
Act.
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(b) Form D; Blue Sky Filings. The
Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D and to provide a copy
thereof upon request of the Placement Agent. The Company shall take
such action as the Company shall reasonably determine is necessary
in order to obtain an exemption for, or to qualify the Securities
for, sale to the Investors under applicable securities or
“Blue Sky” laws of the states of the United States and
shall provide evidence of such actions upon request of the
Placement Agent.
(c) Integration. The Company shall
not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of
the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities or that
would be integrated with the offer or sale of the Securities for
purposes of the rules and regulations of any Trading Market such
that it would require shareholder approval prior to the closing of
such other transaction unless shareholder approval is obtained
before the closing of such subsequent transaction.
(d) Use of Proceeds. The Company
shall use the net proceeds from the sale of the Securities pursuant
to the Transaction Documents for working capital purposes and shall
not use such proceeds: (a) for the satisfaction of any portion of
the Company’s debt (other than payment of trade payables in
the ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Common Stock or Common
Stock Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC
regulations.
(e) Periodic Reporting Obligations.
Until such date that no Investors hold any Securities, the Company
shall duly file, on a timely basis, with the Commission and the
Trading Market all reports and documents required to be filed under
the Exchange Act within the time periods and in the manner required
by the Exchange Act.
(f) Additional
Documents. The
Company will enter into any subscription, purchase or other
customary agreements as the Placement Agent or the Investors deem
necessary or appropriate to consummate the Offering, all of which
will be in form and substance reasonably acceptable to the
Placement Agent and the Investors. The Company agrees that the
Placement Agent may rely upon, and is a third party beneficiary of,
the representations and warranties, and applicable covenants, set
forth in any such purchase, subscription or other agreement with
Investors in the Offering.
(g) Transfer Agent. The Company
will maintain, at its expense, a registrar and transfer agent for
the Common Stock.
(h) No Manipulation of
Price. The
Company will not take, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably
be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company.
(i) Acknowledgment. The Company
acknowledges that any advice given by the Placement Agent to the
Company is solely for the benefit and use of the Board of Directors
of the Company and may not be used, reproduced, disseminated,
quoted or referred to, without the Placement Agent's prior written
consent.
(j) Announcement of Offering. The
Company acknowledges and agrees that the Placement Agent may,
subsequent to the Closing, make public its involvement with the
Offering.
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(k) Reliance on Others. The Company
confirms that it will rely on its own counsel and accountants for
legal and accounting advice.
(l) Research Matters. By entering into this
Agreement, the Placement Agent does not provide any promise, either
explicitly or implicitly, of favorable or continued research
coverage of the Company and the Company hereby acknowledges and
agrees that the Placement Agent’s selection as a placement
agent for the Offering was in no way conditioned, explicitly or
implicitly, on the Placement Agent providing favorable or any
research coverage of the Company. In accordance with FINRA Rule
2711(e), the parties acknowledge and agree that the Placement Agent
has not directly or indirectly offered
favorable research, a specific rating or a specific price target,
or threatened to change research, a rating or a price target, to
the Company or inducement for the receipt of business or
compensation.
Section
5. Conditions of the Obligations of the Placement
Agent. The obligations of the Placement Agent hereunder
shall be subject to the accuracy of the representations and
warranties on the part of the Company set forth in Section 2
hereof, in each case as of the date hereof and as of each Closing
Date as though then made, to the timely performance by each of the
Company of its covenants and other obligations hereunder on and as
of such dates, and to each of the following additional
conditions:
(a) Corporate Proceedings. All
corporate proceedings and other legal matters in connection with
this Agreement, the Transaction Documents, and the sale and
delivery of the Securities, shall have been completed or resolved
in a manner reasonably satisfactory to the Placement Agent's
counsel, and such counsel shall have been furnished with such
papers and information as it may reasonably have requested to
enable such counsel to pass upon the matters referred to in this
Section 5.
(b) No Material Adverse Effect.
Subsequent to the execution and delivery of this Agreement and
prior to each Closing Date, in the Placement Agent's sole judgment
after consultation with the Company, there shall not have occurred
any Material Adverse Effect (as defined in the Purchase Agreement)
or development involving a prospective material adverse change in
the condition or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition is
set forth in the Transaction Documents.
(c) Opinion of Counsel for the
Company. The Placement Agent shall have received on each
Closing Date the favorable opinion of legal counsel to the Company,
dated as of such Closing Date, addressed to the Placement Agent and
in form and substance satisfactory to the Placement
Agent.
(d) Officers’ Certificate.
The Placement Agent shall have received on each Closing Date a
certificate of the Company, dated as of such Closing Date, signed
by the Chief Executive Officer and Chief Financial Officer of the
Company, to the effect that, and the Placement Agent shall be
satisfied that, the signers of such certificate have reviewed this
Agreement and the Transaction Documents and to the further effect
that:
(i) The representations
and warranties of the Company in this Agreement are true and
correct, as if made on and as of such Closing Date, and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
such Closing Date;
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(ii) Subsequent
to the respective dates as of which information is given in the SEC
Reports and the Transaction Documents, there has not been: (a) any
Material Adverse Effect; (b) any transaction that is material to
the Company and the Subsidiaries taken as a whole, except
transactions entered into in the ordinary course of business; (c)
any obligation, direct or contingent, that is material to the
Company and the Subsidiaries taken as a whole, incurred by the
Company or any Subsidiary, except obligations incurred in the
ordinary course of business; (d) any material change in the capital
stock (except changes thereto resulting from the exercise of
outstanding stock options or warrants) or outstanding indebtedness
of the Company or any Subsidiary; (e) any dividend or distribution
of any kind declared, paid or made on the capital stock of the
Company; or (f) any loss or damage (whether or not insured) to the
property of the Company or any Subsidiary which has been sustained
or will have been sustained which has a Material Adverse
Effect.
(e) Stock Exchange Listing. The
Common Stock shall be registered under the Exchange Act and shall
be listed on the Trading Market, and the Company shall not have
taken any action designed to terminate, or likely to have the
effect of terminating, the registration of the Common Stock
under the Exchange Act or delisting or suspending from trading the
Common Stock from the Trading Market, nor shall the Company have
received any information suggesting that the Commission or the
Trading Market is contemplating terminating such registration or
listing.
(f) Lock-Up Agreements. On the
Closing Date, the Placement Agent shall have received the executed
lock-up agreement, in the form attached hereto as Exhibit A, from each of the
directors and officers of the Company and certain shareholders set
forth on Exhibit B
hereto.
(g) Additional Documents. On or
before each Closing Date, the Placement Agent and counsel for the
Placement Agent shall have received such information and documents
as they may reasonably require for the purposes of enabling them to
pass upon the issuance and sale of the Securities 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.
If any
condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Placement Agent by notice to the Company at any time on or prior to
a Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 6
(Payment of Expenses), Section 7 (Indemnification and Contribution)
and Section 8 (Representations and Indemnities to Survive Delivery)
shall at all times be effective and shall survive such
termination.
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Section
6. Payment of Expenses. The Company agrees
to pay all costs, fees and expenses incurred by the Company in
connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including,
without limitation: (i) all expenses incident to the issuance,
delivery and qualification of the Securities (including all
printing and engraving costs); (ii) all fees and expenses of the
registrar and transfer agent of the Common Stock; (iii) all
necessary issue, transfer and other stamp taxes in connection with
the issuance and sale of the Securities; (iv) all fees and
expenses of the Company’s counsel, independent public or
certified public accountants and other advisors; (v) the fees and
expenses associated with including the Shares and Warrant Shares on
the Trading Market; (vi) all costs and expenses incident to the
travel and accommodation of the Company’s and the Placement
Agent's employees on the “roadshow,” if any; and
(vii) all other fees, costs and expenses of the Company related to
the Offering.
Section
7. Indemnification and Contribution. The
Company agrees to indemnify the Placement Agent in accordance with
the provisions of Exhibit
A to the Investment Banking Agreement, which is incorporated
by reference herein and made a part hereof.
Section
8. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements,
representations, warranties and other statements of the Company or
any person controlling the Company, of its officers, and of the
Placement Agent 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 the Placement Agent, the
Company, or any of its or their partners, officers or directors or
any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any
termination of this Agreement. A successor to a Placement Agent, or
to the Company, its directors or officers or any person controlling
the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this
Agreement.
Section
9. Notices. All communications hereunder
shall be in writing and shall be mailed, hand delivered, telecopied
or e-mailed and confirmed to the parties hereto as
follows:
If to
the Placement Agent to the address set forth above, attention:
General Counsel, facsimile: (000) 000-0000
With a copy to:
Ellenoff
Xxxxxxxx & Schole LLP
1345
Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
E-Mail:
xxxxxxx@xxxxxx.xxx
Attention:
Xxxxxxx Xxxxxxx
If to
the Company:
000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
E-Mail:
xxxx.xxxxxxx@xxxxxxx.xxx
Attention:
Xxxxxx Xxxxxxx, CEO
With a copy to:
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Any
party hereto may change the address for receipt of communications
by giving written notice to the others.
Section
10. Successors. This Agreement will inure to
the benefit of and be binding upon the parties hereto, and to the
benefit of the employees, officers and directors and controlling
persons referred to in Section 7 hereof, and to their respective
successors, and personal representative, and no other person will
have any right or obligation hereunder.
Section
11. 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.
Section
12. Governing Law Provisions. This Agreement
shall be deemed to have been made and delivered in New York City
and both this Agreement and the transactions contemplated hereby
shall be governed as to validity, interpretation, construction,
effect and in all other respects by the internal laws of the State
of New York, without regard to the conflict of laws principles
thereof. Each of the Placement Agent and the Company: (i) agrees
that any legal suit, action or proceeding arising out of or
relating to this Agreement and/or the transactions contemplated
hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the
Southern District of New York, (ii) waives any objection which it
may have or hereafter to the venue of any such suit, action or
proceeding, and (iii) irrevocably consents to the jurisdiction of
the New York Supreme Court, County of New York, and the United
States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Placement Agent and
the Company further agrees to accept and acknowledge service of any
and all process which may be served in any such suit, action or
proceeding in the New York Supreme Court, County of New York, or in
the United States District Court for the Southern District of New
York and agrees that service of process upon the Company mailed by
certified mail to the Company’s address shall be deemed in
every respect effective service of process upon the Company, in any
such suit, action or proceeding, and service of process upon the
Placement Agent mailed by certified mail to the Placement
Agent’s address shall be deemed in every respect effective
service process upon the Placement Agent, in any such suit, action
or proceeding. Notwithstanding any provision of this Agreement to
the contrary, the Company agrees that neither the Placement Agent
nor its affiliates, and the respective officers, directors,
employees, agents and representatives of the Placement Agent, its
affiliates and each other person, if any, controlling the Placement
Agent or any of its affiliates, shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with the engagement and transaction
described herein except for any such liability for losses, claims,
damages or liabilities incurred by us that are finally judicially
determined to have resulted from the willful misconduct or gross
negligence of such individuals or entities. If either party shall
commence an action or proceeding to enforce any provision of this
Agreement, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its reasonable
attorney’s fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or
proceeding.
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Section
13. General Provisions.
(a) This
Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. Notwithstanding anything
herein to the contrary, the Investment Banking Agreement between
the Company and the Placement Agent, shall continue to be effective
and the terms therein shall continue to survive and be enforceable
by the Placement Agent in accordance with its terms, including,
without limitation, Section 5(b) and Section 6 therein with respect
to future offerings. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in
writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each
party whom the condition is meant to benefit. Section headings
herein are for the convenience of the parties only and shall not
affect the construction or interpretation of this
Agreement.
(b) The
Company acknowledges that in connection with the offering of the
Securities: (i) the Placement Agent has acted at arms length, are
not agents of, and owe no fiduciary duties to the Company or any
other person, (ii) the Placement Agent owes the Company only those
duties and obligations set forth in this Agreement and (iii) the
Placement Agent may have interests that differ from those of the
Company. The Company waives to the full extent permitted by
applicable law any claims it may have against the Placement Agent
arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities
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remainder of this page has been intentionally left
blank.]
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If the
foregoing is in accordance with your understanding of our
agreement, please sign below whereupon this instrument, along with
all counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very
truly yours,
a
Delaware corporation
By:
Name:
Title:
The
foregoing Placement Agency Agreement is hereby confirmed and
accepted as of the date first above written.
LADENBURG XXXXXXXX & CO. INC.
By:
Name:
Title:
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Exhibit B – Lock-Up Parties
12
