●] Shares MONOPAR THERAPEUTICS INC. Common Stock UNDERWRITING AGREEMENT
[●]
Shares
MONOPAR
THERAPEUTICS INC.
Common
Stock
[●],
2019
JONESTRADING
INSTITUTIONAL SERVICES LLC
As
Representative of the several Underwriters
named
in Schedule I hereto
c/o
JonesTrading Institutional Services LLC
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Ladies
and Gentlemen:
Monopar
Therapeutics Inc., a Delaware corporation (the
“Company”), proposes to issue and sell to the several
underwriters named in Schedule I hereto (the
“Underwriters”) for whom you are acting as
representative (the “Representative”) an aggregate of
[●] shares (the “Firm Shares”) of the common
stock, par value $0.001 per share, of the Company (“Common
Stock”). The Company also proposes to sell to the several
Underwriters, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional [●] shares of Common Stock
(the “Option Shares”). The Firm Shares and the Option
Shares are hereinafter referred to collectively as the
“Shares”.
The
Company confirms as follows its agreements with the Representative
and the several other Underwriters.
1.
The Company
represents and warrants to, and agrees with, each of the
Underwriters that, as of the date hereof and as of the Closing Date
and each Option Closing Date, if any:
(a) A registration
statement on Form S-1 (File No. 333-233303) in respect of the
Shares and one or more pre-effective amendments thereto (together,
the “Initial Registration Statement”) have been filed
with the Securities and Exchange Commission (the
“Commission”); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered to you, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing
the size of the offering (a “Rule 462(b) Registration
Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Securities
Act”), which became effective upon filing, no other document
with respect to the Initial Registration Statement has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued, no proceeding for that purpose
has been initiated or, to the Company’s knowledge, threatened
by the Commission and any request on the part of the Commission for
additional information from the Company has been satisfied in all
material respects; any preliminary prospectus included in the
Initial Registration Statement, as originally filed or as part of
any amendment thereto, or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under
the Securities Act is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any,
including all schedules and exhibits thereto and including the
information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Securities Act and
deemed by virtue of Rule 430A under the Securities Act to be part
of the Initial Registration Statement at the time it was declared
effective or such part of the Rule 462(b) Registration Statement,
if any, became or hereafter becomes effective, each as amended at
the time such part of the Initial Registration Statement became
effective, together with any documents incorporated by reference
into the Initial Registration Statement or amendment thereto (the
“Incorporated Documents”), are hereinafter collectively
called the “Registration Statement”; the Preliminary
Prospectus relating to the Shares that was included in the
Registration Statement immediately prior to the Applicable Time (as
defined in Section 1(a) (iii) hereof) is hereinafter called the
“Pricing Prospectus”; such final prospectus, in the
form first filed pursuant to Rule 424(b) under the Securities Act,
is hereinafter called the “Prospectus”; and any
“issuer free writing prospectus” as defined in Rule 433
under the Securities Act relating to the Shares is hereinafter
called an “Issuer Free Writing Prospectus”; and all
references to the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, any Issuer Free
Writing Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“XXXXX”). From the time of initial
filing of the Registration Statement with the Commission (or, if
earlier, the first date on which the Company engaged directly or
through any person authorized to act on its behalf in any
Testing-the-Waters Communication) through the date hereof, the
Company has been and is an “emerging growth company,”
as defined in Section 2(a) of the Securities Act (an
“Emerging Growth Company”). “Testing-the-Waters
Communication” means any oral or written communication with
potential investors undertaken in reliance on Section 5(d) of the
Securities Act;
(b) (1) at the
respective times the Initial Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Date (as defined herein
in Section 4) (and, if any Option Shares are purchased, at each
Option Closing Date (as defined herein in Section 4)), the Initial
Registration Statement, any Rule 462(b) Registration Statement and
any amendments and supplements (including any Incorporated
Documents) thereto complied and will comply in all material
respects with the requirements of the Securities Act and the rules
and regulations of the Commission thereunder (the “Rules and
Regulations”) and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (2) at the time the Prospectus or any
amendments or supplements thereto were issued and at the Closing
Date (and, if any Option Shares are purchased, at each Option
Closing Date), neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of
a material fact or omitted or will 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;
provided that the representations and warranties in clauses (1) and
(2) above shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and
in strict conformity with information furnished to the Company in
writing by any Underwriter through the Representative expressly for
use in the Registration Statement or the Prospectus, it being
understood and agreed that the only such information provided by
any Underwriter is that described as such in Section 9(b) hereof.
No order preventing or suspending the use of any Preliminary
Prospectus, the Pricing Prospectus or any Issuer Free Writing
Prospectus has been issued by the Commission.
Each
Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus and the Prospectus filed as part of the Initial
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects
with the requirements of the Securities Act and the Rules and
Regulations and each Preliminary Prospectus, Pricing Prospectus,
Issuer Free Writing Prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T;
(c) For the purposes of
this Agreement, the “Applicable Time” is [●]
[a.m.][p.m.] (Eastern time) on the date of this Agreement; the
Pricing Prospectus as supplemented by the other documents and
information listed in Schedule II(a) hereto, taken together
(collectively, the “Pricing Disclosure Package”) as of
the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free
Writing Prospectus and/or Written Testing-the-Waters Communication
listed on Schedule II(b) hereto does not conflict with the
information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing
Prospectus and/or Written Testing-the-Waters Communication, as
supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus or Written Testing-the-Waters Communication in reliance
upon and in conformity with the information furnished in writing to
the Company by an Underwriter through the Representative expressly
for use therein;
(d) The Company has
filed a registration statement pursuant to the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), to
register the Common Stock, and such registration statement has been
declared effective; the Company is not, and at the time of filing
the Initial Registration Statement, was not an “ineligible
issuer,” as defined under Rule 405 under the Securities
Act;
(e) The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Pricing
Prospectus and to enter into and perform its obligations under this
Agreement, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where the failure so to qualify or be in good standing would not
have a Material Adverse Effect (as defined below) on the Company
and its subsidiaries, considered as one enterprise;
(f) Each subsidiary of
the Company (each a “Subsidiary”) has been duly
incorporated (or organized) and is validly existing as a
corporation (or other organization) in good standing under the laws
of the jurisdiction of its incorporation (or organization), with
power and authority to own, lease and operate its properties and
conduct its business as described in the Pricing Prospectus, and
has been duly qualified as a foreign corporation (or other
organization) for the transaction of business and is in good
standing under the laws of each other jurisdiction in which its
owns or leases properties or conducts any business so as to require
such qualification, except where the failure so to qualify or be in
good standing would not have a Material Adverse Effect (as defined
below in Section 1(m)) on the Company and the Subsidiaries,
considered as one enterprise; all of the issued and outstanding
capital stock (or other ownership interests) of each Subsidiary has
been duly and validly authorized and issued, is fully paid and
non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(g) The Company has an
authorized capitalization as set forth in the Pricing Prospectus,
and all of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully
paid and non-assessable and conform to the descriptions thereof
contained in the Pricing Prospectus; and none of the issued and
outstanding shares of capital stock of the Company are subject to
any preemptive or similar rights;
(h) The Shares to be
issued and sold by the Company hereunder have been duly authorized
and, when issued, delivered and paid for by the Underwriters in
accordance with the terms of this Agreement, will be validly issued
and fully paid and non-assessable and will conform to the
descriptions thereof contained in the Prospectus; and the issuance
of such Shares is not subject to any preemptive or similar
rights;
(i) This Agreement has
been duly authorized, executed and delivered by the
Company;
(j) The issue and sale
of the Shares to be sold by the Company hereunder, the execution of
this Agreement by the Company and the compliance by the Company
with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated will not: (1) conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries is bound
or to which any of the property or assets of the Company or any of
the Subsidiaries is subject; (2) result in any violation of the
provisions of the certificate or articles of incorporation or
by-laws (or other organization documents) of the Company or any of
the Subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company or any of the Subsidiaries or any of their properties;
or (3) require the consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body for the issue and sale of the Shares to
be sold by the Company hereunder or the consummation by the Company
of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Shares and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(k) BPM LLP, who have
certified certain financial statements of the Company and the
Subsidiaries are independent public accountants as required by the
Securities Act and the Rules and Regulations. The financial
statements, together with related schedules and notes, included in
the Registration Statement and the Pricing Prospectus comply in all
material respects with the requirements of the Securities Act and
present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and the
Subsidiaries on the basis stated in the Registration Statement at
the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as disclosed therein; and the summary financial data
included in the Pricing Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with
that of the financial statements included in the Registration
Statement. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration
Statement 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;
(l) Neither the Company
nor any Subsidiary has sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus; and, since the respective
dates as of which information is given in the Registration
Statement and the Pricing Prospectus, (1) there has not been any
change in the capital stock (other than the issuance of shares of
Common Stock upon the exercise or conversion of securities existing
as of the date hereof, or the grant of options, restricted stock or
other equitybased awards under the Company’s existing
equity compensation plans) or long-term debt of the Company or any
of the Subsidiaries, (2) there has not been any Material Adverse
Effect (as defined below in Section 1(m)), or any development that
would reasonably be expected to result in a Material Adverse Effect
(as defined below in Section 1(m)), in or affecting the general
affairs, business, prospects, management, financial position,
shareholders’ equity or results of operations of the Company
and the Subsidiaries, considered as one enterprise, (3) there have
been no transactions entered into by, and no obligations or
liabilities, contingent or otherwise, incurred by the Company or
any of the Subsidiaries, whether or not in the ordinary course of
business, which are material to the Company and the Subsidiaries,
considered as one enterprise or (4) there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock, in each case, otherwise than as set
forth or contemplated in the Pricing Prospectus;
(m) Neither the Company
nor any of the Subsidiaries is (1) in violation of its certificate
or articles of incorporation or bylaws (or other organization
documents) or (2) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of the Subsidiaries, or (3) in violation of any
decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries, or (4) in
default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their respective
properties may be bound, except, in the case of clauses (2), (3)
and (4), where any such violation or default, individually or in
the aggregate, would not have a material adverse effect on the
general affairs, business, prospects, management, financial
position, shareholders’ equity or results of operations of
the Company and the Subsidiaries, considered as one enterprise (a
“Material Adverse Effect”);
(n) Each of the Company
and each Subsidiary has good and marketable title to all real and
personal property described in the Pricing Prospectus as being
owned by it, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Pricing Prospectus
or are not material to the business of the Company or any
Subsidiary; and any real property and buildings described in the
Pricing Prospectus as being held under lease by the Company or any
Subsidiary are held under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings
by the Company or any Subsidiary;
(o) Other than as set
forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries
is a party or of which any property of the Company or any of the
Subsidiaries is the subject which, if determined adversely to the
Company or the Subsidiary, individually or in the aggregate, would
have or may reasonably be expected to have a Material Adverse
Effect, or would prevent or impair the consummation of the
transactions contemplated by this Agreement, or which are required
to be described in the Registration Statement or the Pricing
Prospectus; and, to the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or others;
(p) There are no legal,
governmental or regulatory actions, suits or proceedings pending,
nor, to the Company’s knowledge, any legal, governmental or
regulatory investigations, including any proceeding before the
United States Food and Drug Administration of the U.S. Department
of Health and Human Services (the “FDA”) or comparable
federal, state, local or foreign governmental authorities (it being
understood that the interaction between the Company and the FDA and
such comparable governmental authorities relating to the clinical
development and product approval process shall not be deemed
proceedings for purposes of this representation), to which the
Company or a Subsidiary is a party or to which any property of the
Company or any Subsidiary is the subject that, individually or in
the aggregate, if determined adversely to the Company or any
Subsidiary, would have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement; to the Company’s knowledge,
no such actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or
threatened by others that, individually or in the aggregate, if
determined adversely to the Company or any Subsidiary, would have a
Material Adverse Effect; and there are no current or pending legal,
governmental or regulatory actions, suits, proceedings or, to the
Company’s knowledge, investigations that are required under
the Securities Act to be described in the Prospectus that are not
described in the Prospectus (including any Incorporated Documents).
The Company is in compliance with all applicable federal, state,
local and foreign laws, regulations, orders and decrees governing
its business as enforced by the FDA, or any other federal, state or
foreign agencies or bodies engaged in the regulation of medical
devices, except where noncompliance would not, singularly or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. All preclinical and clinical studies conducted by or on
behalf of the Company to support clearance for commercialization of
the Company’s products have been conducted by the Company, or
to the Company’s knowledge by third parties, in compliance
with all applicable federal, state or foreign laws, rules, orders
and regulations, except for such failure or failures to be in
compliance as would not reasonably be expected to have, singularly
or in the aggregate, a Material Adverse Effect;
(q) The Company and the
Subsidiaries possess all permits, licenses, approvals, consents and
other authorizations (collectively, “Permits”) issued
by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the businesses now operated
by them; the Company and the Subsidiaries are in compliance with
the terms and conditions of all such Permits and all of the Permits
are valid and in full force and effect, except, in each case, where
the failure so to comply or where the invalidity of such Permits or
the failure of such Permits to be in full force and effect,
individually or in the aggregate, would not have a Material Adverse
Effect; and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or material
modification of any such Permits;
(r) The Company and the
Subsidiaries own or possess, or can acquire on reasonable terms,
all licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names, patents and patent rights
(collectively “Intellectual Property”) material to
carrying on their businesses as described in the Pricing
Prospectus, and neither the Company nor any Subsidiary has received
any correspondence relating to any Intellectual Property dispute or
notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property which would render
any Intellectual Property invalid or inadequate to protect the
interest of the Company and the Subsidiaries and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, individually or in the
aggregate, would have or may reasonably be expected to have a
Material Adverse Effect;
(s) The Company and the
Subsidiaries: (1) are and at all times have been in material
compliance with all statutes, rules and 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 under development, manufactured or distributed by the
Company or the Subsidiaries (“Applicable Laws”), (2)
have not received any Form 483 from the FDA, notice of adverse
finding, warning letter, or other written correspondence or notice
from the FDA, the European Medicines Agency (the
“EMA”), or any other federal, state, local or foreign
governmental or regulatory authority alleging or asserting material
noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and
supplements or amendments thereto required by any such Applicable
Laws (“Authorizations”), which would, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Effect; (3) possess all material Authorizations and such
Authorizations are valid and in full force and effect and neither
the Company nor the Subsidiaries is in material violation of any
term of any such Authorizations; (4) have not received written
notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from the
FDA, the EMA, or any other federal, state, local or foreign
governmental or regulatory authority or third party alleging that
any Company product, operation or activity is in material violation
of any Applicable Laws or Authorizations and has no knowledge that
the FDA, the EMA, or any other federal, state, local or foreign
governmental or regulatory authority or third party is considering
any such claim, litigation, arbitration, action, suit,
investigation or proceeding against the Company; (5) have not
received written notice that the FDA, EMA, or any other federal,
state, local or foreign governmental or regulatory authority has
taken, is taking or intends to take action to limit, suspend,
modify or revoke any material Authorizations and has no knowledge
that the FDA, EMA, or any other federal, state, local or foreign
governmental or regulatory authority is considering such action;
and (6) have filed, obtained, maintained or submitted all reports,
documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any
Applicable Laws or Authorizations except where the failure to file
such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments would not result
in a Material Adverse Effect, and that all such reports, documents,
forms, notices, applications, records, claims, submissions and
supplements or amendments were materially complete and correct on
the date filed (or were corrected or supplemented by a subsequent
submission);
(t) The animal and
other preclinical studies and clinical trials conducted by the
Company or on behalf of the Company were, and, if still pending
are, to the Company’s knowledge, being conducted in all
material respects in compliance with all Applicable Laws and in
accordance with experimental protocols, procedures and controls
generally used by qualified experts in the preclinical study and
clinical trials of new drugs and biologics as applied to comparable
products to those being developed by the Company; the descriptions
of the results of such preclinical studies and clinical trials
contained in the Registration Statement and the Prospectus are
accurate and complete in all material respects, and, except as set
forth in the Registration Statement and the Prospectus, the Company
has no knowledge of any other clinical trials or preclinical
studies, the results of which reasonably call into question the
clinical trial or preclinical study results described or referred
to in the Registration Statement and the Prospectus when viewed in
the context in which such results are described; and the Company
has not received any written notices or correspondence from the
FDA, the EMA, or any other domestic or foreign governmental agency
requiring the termination, suspension or modification of any
preclinical studies or clinical trials conducted by or on behalf of
the Company that are described in the Registration Statement and
the Prospectus or the results of which are referred to in the
Registration Statement and the Prospectus;
(u) No material labor
dispute with the employees of the Company or the Subsidiaries
exists, or, to the knowledge of the Company, is imminent. The
Company is not aware of any existing or imminent labor disturbance
by the employees of any of its or any Subsidiary’s principal
suppliers, manufacturers, customers or contractors, which,
individually or in the aggregate, may reasonably be expected to
result in a Material Adverse Effect;
(v) The Company and the
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; neither the Company nor any Subsidiary has been refused
any insurance coverage sought or applied for; and the Company has
no reason to believe that either it or any Subsidiary will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect;
(w) The Company and
each of its Subsidiaries have made and keep books, records and
accounts, which, in reasonable detail, accurately and fairly
reflect in all material respects the transactions and dispositions
of the assets of the Company and its Subsidiaries. The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (1) transactions are executed in
accordance with management’s general or specific
authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only
in accordance with management’s general or specific
authorization; (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and
(5) the interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement
is in conformity with generally accepted accounting principles and
is updated as necessary to comply in all material respects with the
requirements of the Securities Act and the Commission’s rules
and guidelines applicable thereto and present fairly the
consolidated financial position, results of operations and changes
in financial position of the Company and the Subsidiaries on the
basis stated in the Registration Statement at the respective dates
or for the respective periods to which they apply;
(x) Other than as may
be set forth in the Pricing Disclosure Package, since the date of
the latest audited financial statements included in the Pricing
Prospectus, (1) the Company has not been advised of (a) any
significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Company and
each of its Subsidiaries to record, process, summarize and report
financial data, or any material weaknesses in internal controls and
(b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the internal
controls of the Company and each of its Subsidiaries, and (2) since
that date, 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;
(y) The Company
maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 (e) of the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
procedures are effective in all material respects to perform the
functions for which they were established;
(z) All United States
federal income tax returns of the Company and the Subsidiaries
required by law to be filed have been filed and all taxes shown by
such returns or otherwise assessed, which are due and payable, have
been paid, except assessments against which appeals have been or
will be promptly taken and as to which adequate reserves have been
provided. The Company and the Subsidiaries have filed all other tax
returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law, except insofar as
the failure to file such returns, individually or in the aggregate,
would not result in a Material Adverse Effect, and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any Subsidiary except for such taxes, if
any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on
the books of the Company and the Subsidiaries in respect of any
income and corporation tax liability for any years not finally
determined are adequate in all material respects to meet any
assessments or re-assessments for additional income tax for any
years not finally determined;
(aa) There
are no statutes, regulations, documents or contracts of a character
required to be described in the Registration Statement or the
Pricing Prospectus or to be filed as an exhibit to the Registration
Statement which are not described or filed as
required;
(bb) Neither
the Company nor any of the Subsidiaries is in violation of any
statute or any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, production, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates
any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim, individually or in the
aggregate, would have a Material Adverse Effect; and the Company is
not aware of any pending investigation which would reasonably be
expected to lead to such a claim;
(cc) Each
employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or
contributed to by the Company or any Subsidiary for employees or
former employees of the Company and its affiliates has been
maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the “Code”), except to the extent that failure
to so comply, individually or in the aggregate, would not have a
Material Adverse Effect. No prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code has
occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative
exemption;
(dd) Neither
the Company nor any of its Subsidiaries, or any director, officer,
agent, employee nor, to the Company’s knowledge, other person
associated with or acting on behalf of the Company or any of its
Subsidiaries, has (1) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (2) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds, (3) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977, or (4)
made any bribe, unlawful rebate, payoff, influence payment,
kickback or other unlawful payment;
(ee) Solely
to the extent that the SarbanesOxley Act of 2002 and the
rules and regulations promulgated in connection therewith (the
“SarbanesOxley Act”), including Section 402
related to loans and Sections 302 and 906 related to
certifications, are or have been applicable to the Company, 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 with any applicable provisions of the SarbanesOxley
Act;
(ff) Except
as may be described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no persons with
registration rights or other similar rights to have securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act;
(gg) The
Company is not and, after giving effect to the offering and sale of
the Shares as contemplated herein and the application of the net
proceeds therefrom as described in the Pricing Prospectus, will not
be an “investment company”, as such term is defined in
the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(hh) The
Company has not distributed and, prior to the later to occur of the
Closing Date (as defined in Section 4 hereof) and completion of
distribution of the Shares, will not distribute any offering
materials in connection with the offering and sale of the Shares,
other than the Pricing Prospectus, the Prospectus and, subject to
compliance with Section 6 hereof, any Issuer Free Writing
Prospectus; and the Company has not taken and will not take,
directly or indirectly, any action designed to cause or result in,
or which constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of
the Company to facilitate the sale of the Shares. The Company (a)
has not alone engaged in any Testing-the-Waters Communication other
than Testing-the-Waters Communications with the consent of the
Representative with entities that are qualified institutional
buyers within the meaning of Rule 144A under the Securities Act or
institutions that are accredited investors within the meaning of
Rule 501 under the Securities Act and (b) has not authorized anyone
other than the Representative to engage in Testing-the-Waters
Communications. The Company reconfirms that the Representative has
been authorized to act on its behalf in undertaking
Testing-the-Waters Communications. The Company has not distributed
any Written Testing-the-Waters Communications other than those
listed on Schedule II(b) hereto. “Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication
that is a written communication within the meaning of Rule 405
under the Securities Act;
(ii) The
statistical and market and industry-related data included in the
Pricing Prospectus and the Prospectus are based on or derived from
sources which 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, and the Company has
obtained the written consent to the use of such data from sources
to the extent required;
(jj) The
audiovisual presentation made available to the public by the
Company at xxxx://xxx.xxxxxxxxxxxxxx.xxx (the “Bona Fide
Electronic Roadshow”), is a “bona fide electronic
roadshow” for purposes of Rule 433(d)(8)(ii) of the
Securities Act, and such presentation, together with the Pricing
Prospectus, does not contain any untrue statement of material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements in or omissions
from such presentation or Pricing Prospectus made in reliance upon
and in strict conformity with information furnished to the Company
in writing by any Underwriter through the Representative expressly
for use therein;
(kk) (A)
To the Company’s knowledge, there has been no security breach
or incident, unauthorized access or disclosure, or other compromise
of or relating to the Company’s or its Subsidiaries’
information technology and computer systems, networks, hardware,
software, data and databases (including, as applicable, the data
and information of their respective customers, employees,
suppliers, vendors and any third party data maintained, processed
or stored by the Company and its Subsidiaries, and any such data
processed or stored by third parties on behalf of the Company and
its Subsidiaries), equipment or technology (collectively, “IT
Systems and Data”), except in each case as would not
reasonably expected to, individually or in the aggregate, have a
Material Adverse Effect; and (B) the Company and its Subsidiaries
have implemented appropriate controls, policies, procedures, and
technological safeguards to maintain and protect the integrity,
continuous operation, redundancy and security of their IT Systems
and Data reasonably consistent in all material respects with
industry standards and practices, or as required by applicable
regulatory standards. The Company and its Subsidiaries are
presently in material compliance with all applicable laws or
statutes and all judgments, orders, rules and regulations of any
court or arbitrator or governmental or regulatory authority
relating to the privacy and security of IT Systems and Data and to
the protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification; and
(ll) Any
certificate signed by any officer of the Company delivered to the
Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as
to the matters covered thereby.
2.
Subject to the
terms and conditions herein set forth, (a) the Company agrees to
sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $[●] (the “Purchase
Price”), the number of Firm Shares (to be adjusted by the
Representative so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the
Company by a fraction, the numerator of which is the aggregate
number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the aggregate number of Firm Shares
to be purchased by all of the Underwriters from the Company
hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Option Shares
as provided below, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the Purchase Price,
the number of Option Shares (to be adjusted by the Representative
so as to eliminate fractional shares) determined by multiplying the
number of Option Shares as to which such election shall have been
exercised by the fraction set forth in clause (a)
above.
The
Company hereby grants to the Underwriters the right to purchase at
their election up to [●] Option Shares, at the Purchase
Price, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares. The Underwriters may
exercise their option to acquire Option Shares in whole or in part
from time to time only by written notice from the Representative to
the Company, given within a period of 30 calendar days after the
date of this Agreement and setting forth the aggregate number of
Option Shares to be purchased and the date on which such Option
Shares are to be delivered, as determined by the Representative but
in no event earlier than the Closing Date or, unless the
Representative and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such
notice.
3.
It is understood
that the several Underwriters propose to offer the Firm Shares for
sale to the public upon the terms and conditions set forth in the
Prospectus.
4.
The Company will
deliver the Firm Shares to the Representative through the
facilities of the Depository Trust Company (“DTC”) for
the accounts of the Underwriters, against payment of the purchase
price therefor in Federal (same day) funds by official bank check
or checks or wire transfer drawn to the order of the Company at the
office of Xxxxx Xxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, at
10:00 A.M., New York time, on [●], 2019, or at such other
time not later than seven full business days thereafter as
JonesTrading Institutional Services LLC
(“JonesTrading”) and the Company determine, such time
being herein referred to as the “Closing Date”. For
purposes of Rule 15c6-1 under the Exchange Act, the Closing Date
(if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities
for all the Firm Shares. The certificates for the Firm Shares so to
be delivered, if any, will be in definitive form, in such
denominations and registered in such names as the Representative
request and will be made available for checking and packaging at
the above office of Xxxxx Xxxxxx LLP at least 24 hours prior to the
Closing Date.
Each
time for the delivery of and payment for the Option Shares, being
herein referred to as an “Option Closing Date”, which
may be the Closing Date, shall be determined by the Representative
as provided above. The Company will deliver the Option Shares being
purchased on each Option Closing Date to the Representative through
the facilities of DTC for the accounts of the Underwriters, against
payment of the purchase price therefor in Federal (same day) funds
by official bank check or checks or wire transfer drawn to the
order of the Company at the above office of Xxxxx Xxxxxx LLP, at
10:00 A.M., New York time on the applicable Option Closing Date.
The certificates for the Option Shares so to be delivered, if any,
will be in definitive form, in such denominations and registered in
such names as the Representative requests and will be made
available for checking and packaging at the above office of Xxxxx
Xxxxxx LLP at least 24 hours prior to such Option Closing
Date.
5.
The Company
covenants and agrees with each of the Underwriters as
follows:
(a) The Company,
subject to Section 5(b), will comply with the requirements of Rule
430A under the Securities Act, and will notify the Representative
promptly, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
prospectus shall have been filed, to furnish the Representative
with copies thereof, and to file promptly all material required to
be filed by the Company with the Commission pursuant to Rule 433(d)
under the Securities Act, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or
of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the initiation or, to the
Company’s knowledge, the threatening of any proceedings for
any of such purposes; and (v) if the Company ceases to be an
Emerging Growth Company at any time prior to the later of (A)
completion of the distribution of the Shares within the meaning of
the Securities Act and (B) completion of the 180-day restricted
period referred to in Section 5(j) hereof. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) under
the Securities Act and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Company will
give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing
under Rule 462(b) under the Securities Act), or any amendment,
supplement or revision to the Prospectus, or any Issuer Free
Writing Prospectus, will furnish the Representative with copies of
any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for
the Underwriters shall reasonably object.
(c) The Company will
use its best efforts to qualify the Shares for offering and sale
under the securities laws of such jurisdictions as the
Representative may reasonably request and to comply with such laws
so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that nothing in this Section
5(c) shall require the Company to qualify as a foreign corporation
in any jurisdiction in which it is not already so qualified, or to
file a general consent to service of process in any jurisdiction,
or subject itself to taxation in any jurisdiction if it is not
otherwise so subject.
(d) The Company has
furnished or, upon written request, will deliver to the
Representative, without charge, as many signed copies as the
Representative may reasonably request of the Initial Registration
Statement as originally filed, any Rule 462(b) Registration
Statement and of each amendment to each (including exhibits filed
therewith or incorporated by reference therein) and signed copies
of all consents and certificates of experts, and will also, upon
Representative’s written request, deliver to the
Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation
S-T.
(e) The Company has
delivered to each Underwriter, without charge, as many written and
electronic copies of each Preliminary Prospectus as such
Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the Securities
Act. The Company will furnish to each Underwriter, without charge,
prior to 5:00 P.M. New York time on the business day next
succeeding the date of this Agreement and from time to time
thereafter during the period when the Prospectus is required to be
delivered in connection with sales of the Shares under the
Securities Act or the Exchange Act or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act, such number of
written and electronic copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation
S-T.
(f) The Company will
comply with the Securities Act and the Rules and Regulations so as
to permit the completion of the distribution of the Shares as
contemplated in this Agreement and in the Prospectus. If at any
time when, in the reasonable opinion of counsel for the
Underwriters, a prospectus is required to be delivered in
connection with sales of the Shares under the Securities Act or the
Exchange Act (or in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act), any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it (or in lieu thereof, the notice referred to in Rule 173(a) under
the Securities Act) is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements
of the Securities Act or the Rules and Regulations, the Company
will promptly prepare and file with the Commission, subject to
Section 5(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of written and
electronic copies of such amendment or supplement as the
Underwriters may reasonably request. The Company will provide the
Representative with notice of the occurrence of any event during
the period specified above that may give rise to the need to amend
or supplement the Registration Statement or the Prospectus as
provided in the preceding sentence promptly after the occurrence of
such event. If at any time following the distribution of any
Written Testing-the-Waters Communication there occurred or occurs
an event or development as a result of which such Written
Testing-the-Waters 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 Written Testing-the-Waters Communication to
eliminate or correct such untrue statement or
omission.
(g) The Company will
make generally available (within the meaning of Section 11(a) of
the Securities Act) to its security holders and to the
Representative as soon as practicable an earnings statement (in
form complying with the provisions of Rule 158 under the Securities
Act) covering a period of at least twelve consecutive months
beginning after the effective date of the Registration Statement;
provided that the Company will be deemed to have furnished such
statements to its security holders and the Representatives to the
extent they are filed on XXXXX.
(h) The Company will
use the net proceeds received by it from the sale of the Shares in
the manner specified in the Pricing Prospectus under the heading
“Use of Proceeds”.
(i) The Company will
use its best efforts to effect and maintain the listing for
quotation of the Common Stock (including the Shares) on the NASDAQ
Capital Market.
(j) During a period of
180 days from the date of the Prospectus, the Company will not,
without the prior written consent of JonesTrading, (i) offer,
pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or
dispose of, directly or indirectly, any Common Stock or any
securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of
ownership of Common Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise, other than
(1) the Shares to be sold hereunder, (2) the issuance of
equity-based awards granted pursuant to the Company’s benefit
plans existing on the date hereof that are referred to in the
Prospectus, as such plans may be amended or (3) the issuance of
shares of Common Stock upon the exercise of any such equity-based
awards.
(k) If
the Representative, in its sole discretion, agrees to release or
waive the restrictions set forth in a “lock-up”
agreement described in Section 8(l) hereof for an officer or
director of the Company and provides the Company with notice of the
impending release or waiver at least three business days before the
effective date of the release or waiver, the Company agrees to
announce the impending release or waiver by a press release
substantially in the form of Exhibit C hereto through a
reputable news service at least two
business days before the effective date of the release or
waiver.
(l) The Company, during
the period when the Prospectus is required to be delivered in
connection with sales of the Shares under the Securities Act or the
Exchange Act (or in lieu thereof, the notice referred to in Rule
173(a) under the Securities Act), will file all documents required
to be filed with the Commission pursuant to the Exchange Act within
the time periods required by the Exchange Act and the rules and
regulations of the Commission thereunder.
(m) The Company will
file with the Commission such information on Form 10-Q or Form 10-K
as may be required pursuant to Rule 463 under the Securities
Act.
(n) During a period of
five years from the effective date of the Registration Statement,
the Company will upon request furnish to Representative copies of
all reports or other communications (financial or other) furnished
to shareholders generally, and to deliver to Representative as soon
as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of
the Company is listed; and provided that the Company will be deemed
to have furnished such reports and financial statements to the
extent they are filed on XXXXX.
(o) If the Company
elects to rely upon Rule 462(b) under the Securities Act, the
Company will file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., New York
time, on the date of this Agreement, and at the time of filing
either to pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or to give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Securities
Act.
(p) If so 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 by the Underwriters
in connection with the offering and sale of the Shares. As used
herein, the term “electronic Prospectus” means a form
of the most recent Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, and any amendment or supplement
thereto, that meets each of the following conditions: (i) it shall
be encoded in an electronic format, reasonably satisfactory to the
Representative, that may be transmitted electronically by the
Representative and the other Underwriters to offerees and
purchasers of the Shares, (ii) it shall disclose the same
information as such paper Preliminary Prospectus, Issuer Free
Writing Prospectus or the Prospectus, as the case may be; and (iii)
it shall be in or convertible into a paper format or an electronic
format, reasonably satisfactory to the Representative, that will
allow investors to store and have continuously ready access to such
Preliminary Prospectus, Issuer Free Writing Prospectus or the
Prospectus at any future time, without charge to investors (other
than any fee charged for subscription to the Internet generally).
The Company hereby confirms that, if so requested by the
Representative, it has included or will include in the Prospectus
filed with the Commission an undertaking that, upon receipt of a
request by an investor or his or her representative, the Company
shall transmit or cause to be transmitted promptly, without charge,
a paper copy of such paper Preliminary Prospectus, Issuer Free
Writing Prospectus or the Prospectus to such investor or
representative.
6.
(a) The Company
represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer
relating to the Shares that would constitute a “free writing
prospectus” as defined in Rule 405 under the Securities Act
or a Written Testing-the-Waters Communication; each Underwriter
represents and agrees that, without the prior consent of the
Company and the Representative, it has not made and will not make
any offer relating to the Shares that would constitute a free
writing prospectus or a Written Testing-the-Waters Communication;
any such free writing prospectus and Written Testing-the-Waters
Communication the use of which has been consented to by the Company
and the Representative is listed on Schedule II(b)
hereto;
(b) The Company has
complied and will comply with the requirements of Rule 433 under
the Securities Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or
retention where required and legending; the Company represents that
it has satisfied and agrees that it will satisfy the conditions
under Rule 433 under the Securities Act to avoid a requirement to
file with the Commission any electronic road show;
(c) The Company agrees
that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such
Issuer Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing,
not misleading, the Company will give prompt notice thereof to the
Representative and, if requested by the Representative, will
prepare and furnish without charge to each Underwriter an Issuer
Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this
covenant shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in strict
conformity with information furnished in writing to the Company by
an Underwriter through the Representative expressly for use
therein.
7.
The Company
covenants and agrees with the several Underwriters that, whether or
not the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this
Agreement, including (i) the fees, disbursements and expenses of
the Company’s counsel, accountants and other advisors; (ii)
filing fees and all other expenses in connection with the
preparation, printing and filing of the Registration Statement,
each Preliminary Prospectus, any Issuer Free Writing Prospectus and
the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and
dealers; (iii) the cost of printing or producing this Agreement,
closing documents (including any compilations thereof) and such
other documents as may be required in connection with the offering,
purchase, sale and delivery of the Shares; (iv) all expenses in
connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(c),
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky survey; (v) all fees and
expenses in connection with listing of the Common Stock (including
the Shares) on the NASDAQ Capital Market; (vi) the filing fees
incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, securing any required
review by Financial Industry Regulatory Authority, Inc.
(“FINRA”) of the terms of the sale of the Shares; (vii)
all fees and expenses in connection with the preparation, issuance
and delivery of the certificates representing the Shares to the
Underwriters, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery
of the Shares to the Underwriters; (viii) the cost and charges of
any transfer agent or registrar; (ix) the transportation and other
expenses incurred by the Company in connection with presentations
to prospective purchasers of Shares; (xiii) all reasonable
out-of-pocket costs of the Underwriters in connection with the
performance of their obligation hereunder, (including reasonable
fees and disbursements of counsel for the Underwriters); and (xiv)
all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section. Notwithstanding any of the foregoing, the
Company covenants and agrees with the Representative that it will
pay or cause to be paid to the Representative up to $175,000 for
all reasonable documented out-of-pocket expenses actually incurred,
including the fees of counsel for the Underwriters.
8. The
obligation of the Underwriters hereunder to purchase the Shares on
the Closing Date or each Option Closing Date, as the case may be,
are subject to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Prospectus
shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 5(a); all material required to be filed by
the Company pursuant to Rule 433(d) under the Securities Act shall
have been filed with the Commission within the applicable time
period prescribed for such filing by Rule 433 under the Securities
Act; if the Company has elected to rely upon Rule 462(b) under the
Securities Act, the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., New York time, on the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof or the Prospectus or any
part thereof or any Issuer Free Writing Prospectus shall have been
issued and no proceeding for that purpose shall have been initiated
or, to the knowledge of the Company, threatened by the Commission
or any state securities commission; and all requests for additional
information on the part of the Commission shall have been complied
with to your reasonable satisfaction.
(b) The representations
and warranties of the Company contained herein are true and correct
on and as of the Closing Date or the Option Closing Date, as the
case may be, as if made on and as of the Closing Date or the Option
Closing Date, as the case may be, and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or
the Option Closing Date, as the case may be.
(c) Subsequent to the
execution and delivery of this Agreement and prior to the Closing
Date or the Option Closing Date, as the case may be, there shall
not have occurred any downgrading, nor shall any notice have been
given of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of
or guaranteed by the Company or any Subsidiary by any
“nationally recognized statistical rating
organization”, as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(d) (i) Neither the
Company nor any Subsidiary shall have sustained since the date of
the latest audited financial statements included in the Pricing
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Pricing Disclosure Package, and (ii) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, (1) there shall not have
been any change in the capital stock or long-term debt of the
Company or any Subsidiary or (2) there shall not have been any
Material Adverse Effect, or any development involving a prospective
Material Adverse Effect, in or affecting the general affairs,
business, prospects, management, financial position,
shareholders’ equity or results of operations of the Company
and the Subsidiaries, considered as one enterprise, the effect of
which, in any such case described in clause (i) or (ii), is in the
reasonable judgment of the Representative so material and adverse
as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at
such Closing Date or Option Closing Date, as the case may be, on
the terms and in the manner contemplated in the Pricing
Prospectus.
(e) the Representative
shall have received on and as of the Closing Date or the Option
Closing Date, as the case may be, a certificate of an executive
officer of the Company, reasonably satisfactory to the
Representative, to the effect (1) set forth in Sections 8(b) (with
respect to the respective representations, warranties, agreements
and conditions of the Company) and 8(c), (2) that none of the
situations set forth in clause (i) or (ii) of Section 8(d) shall
have occurred and (3) that no stop order suspending the
effectiveness of the Registration Statement has been issued and to
the knowledge of the Company, no proceedings for that purpose have
been instituted or are pending or contemplated by the
Commission;
(f) On the Closing Date
or Option Closing Date, as the case may be, Xxxxx & Xxxxxxxxx
LLP, counsel for the Company, shall have furnished to the
Representative their favorable written opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and
substance reasonably satisfactory to counsel for the Underwriters,
to the effect set forth in Exhibit A hereto.
(g) On the effective
date of the Registration Statement and, if applicable, the
effective date of the most recently filed post-effective amendment
to the Registration Statement, BPM LLP shall have furnished to the
Representative a letter, dated the date of delivery thereof, in
form and substance satisfactory to the Representative, containing
statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(h) On the Closing Date
or Option Closing Date, as the case may be, the Representative
shall have received from BPM LLP a letter, dated the Closing Date
or such Option Closing Date, as the case may be, to the effect that
they reaffirm the statements made in the letter or letters
furnished pursuant to Section 8(g), except that the specified date
referred to shall be a date not more than three business days prior
to the Closing Date or such Option Closing Date, as the case may
be.
(i) On the Closing Date
or Option Closing Date, as the case may be, Xxxxx Xxxxxx LLP,
counsel for the Underwriters, shall have furnished to the
Representative their favorable opinion dated the Closing Date or
the Option Closing Date, as the case may be, with respect to the
due authorization and valid issuance of the Shares, the
Registration Statement, the Prospectus and other related matters as
the Representative may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(j) The Shares to be
delivered on the Closing Date or Option Closing Date, as the case
may be, shall have been approved for quotation on the NASDAQ
Capital Market, subject to official notice of
issuance.
(k) FINRA shall have
confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
conditions.
(l) The Representative
shall have received “lock-up” agreements, each
substantially in the form of Exhibit B hereto, from each
shareholder holding 2% or more of the Company’s Common Stock,
executive officer and director of the Company and such agreements
shall be in full force and effect on the Closing Date or Option
Closing Date, as the case may be.
(m) On or prior to the
Closing Date or Option Closing Date, as the case may be, the
Company shall have furnished to the Representative such further
information, certificates and documents as the Representative shall
reasonably request.
(n) On or after the
Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the NASDAQ Capital Market; (ii) a suspension or
material limitation in trading in the Company’s securities on
the NASDAQ Capital Market; (iii) a general moratorium on commercial
banking activities declared by any of Federal or New York State
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States;
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or
crisis or any material change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iv) or (v) in the reasonable
judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at such Closing Date or Option Closing
Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus;
If any
condition specified in this Section 8 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be
terminated, subject to the provisions of Section 12, by the
Representative by notice to the Company at any time at or prior to
the Closing Date or Option Closing Date, as the case may be, and
such termination shall be without liability of any party to any
other party, except as provided in Section 12.
9.
(a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act against
any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including without limitation, reasonable
attorneys’ fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim
or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Initial Registration Statement, as originally
filed or any amendment thereof, the Registration Statement, or any
post-effective amendment thereof, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, any Issuer Free Writing Prospectus, any
Written Testing-the-Waters Communication, or any “issuer
information” filed or required to be filed pursuant to Rule
433(d) under the Securities Act, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission
or alleged omission made in the Initial Registration Statement, as
originally filed or any amendment thereof, the Registration
Statement, or any post-effective amendment thereof, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, any Issuer Free Writing
Prospectus, or any Written Testing-the-Waters Communication in
reliance upon and in strict conformity with written information
furnished to the Company by or on behalf of any Underwriter through
JonesTrading expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
is the information described as such in Section 9(b)
below.
(b) Each Underwriter
severally, and not jointly, agrees to indemnify and hold harmless
the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims,
damages and expenses whatsoever as incurred (including without
limitation, reasonable attorneys’ fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of
any claim or litigation), joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Initial Registration Statement, as originally
filed or any amendment thereof, the Registration Statement, or any
post-effective amendment thereof, or any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, any Issuer Free Writing Prospectus or
any Written Testing-the-Waters Communication, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent,
but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in strict conformity
with written information furnished to the Company by or on behalf
of such Underwriter through JonesTrading expressly for use therein,
it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth
paragraph under the caption “Underwriting” and the
information contained in the eighth and ninth paragraphs under the
caption “Underwriting”.
(c) Promptly after
receipt by an indemnified party under Section 9(a) or 9(b) of
notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party under such Section, notify each party against
whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall
not relieve it from any liability which it may have under this
Section 9). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and jointly with any other indemnifying party
similarly notified, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnified party). Notwithstanding the
foregoing, the indemnified party or parties shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party or parties unless (1) the employment of such
counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action,
(2) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (3) such indemnified
party or parties shall have reasonably concluded based on advice
from outside counsel that there may be defenses available to it or
them which are different from or additional to those available to
one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties), in
any of which events the reasonable fees and expenses of such
counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations
or circumstances, which counsel, in the event of indemnified
parties under Section 9(a), shall be selected by JonesTrading. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (1) includes
an unconditional release of the indemnified party from all
liability arising out of such action or claim and (2) 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.
(d) If the
indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under Section
9(a) or 9(b) in respect of any losses, liabilities, claims, damages
or expenses (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of
the Shares shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties’
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The
Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 9(d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this Section 9(d). The amount
paid or payable by an indemnified party as a result of the losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) referred to above in this Section 9(d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Section 9(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission.
No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this
Section 9(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of
the parties to this Agreements contained in this Section 9 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in
equity.
10.
If any Underwriter
or Underwriters default in its or their obligations to purchase
Shares hereunder on the Closing Date or any Option Closing Date and
the aggregate number of Shares that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of
the total number of Shares that the Underwriters are obligated to
purchase on such Closing Date or Option Closing Date, as the case
may be, the Representative may make arrangements satisfactory to
the Company for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are
made by such Closing Date or Option Closing Date, as the case may
be, the non-defaulting Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to
purchase the Shares that such defaulting Underwriters agreed but
failed to purchase on such Closing Date or Option Closing Date, as
the case may be. If any Underwriter or Underwriters so default and
the aggregate number of Shares with respect to which such default
or defaults occur exceeds 10% of the total number of Shares that
the Underwriters are obligated to purchase on such Closing Date or
Option Closing Date, as the case may be, and arrangements
satisfactory to the Representative and the Company for the purchase
of such Shares by other persons are not made within 36 hours after
such default, this Agreement will terminate, subject to the
provisions of Section 12, without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in
Section 12. Nothing herein will relieve a defaulting Underwriter
from liability for its default.
In the
event of any such default which does not result in a termination of
this Agreement, either the Representative or the Company shall have
the right to postpone the Closing Date or the relevant Option
Closing Date, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
As used in this Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this
Section 10.
11.
Notwithstanding
anything herein contained, this Agreement (or the obligations of
the several Underwriters with respect to any Option Shares which
have yet to be purchased) may be terminated, subject to the
provisions of Section 12, in the absolute discretion of the
Representative, by notice given to the Company, if after the
execution and delivery of this Agreement and prior to the Closing
Date or the Option Closing Date, as the case may be, (a) trading
generally on the New York Stock Exchange or on the NASDAQ Capital
Market shall have been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by such
system or by order of the Commission, FINRA or any other
governmental or regulatory authority, (b) trading of any securities
of or guaranteed by the Company or any Subsidiary shall have been
suspended on any exchange or in any over-the-counter market, (c) a
general moratorium on commercial banking activities in New York
shall have been declared by Federal or New York State authorities
or a new restriction materially adversely affecting the
distribution of the Firm Shares or the Option Shares, as the case
may be, shall have become effective, or (d) there has occurred any
material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative, impracticable to market the
Shares to be delivered on the Closing Date or Option Closing Date,
as the case may be, or to enforce contracts for the sale of the
Shares.
If this
Agreement is terminated pursuant to this Section 11, such
termination will be without liability of any party to any other
party except as provided in Section 12 hereof.
12.
The respective
indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Shares. If (i)
this Agreement is terminated pursuant to Section 11, (ii) the
Company for any reason fails to tender the Shares for delivery to
the Underwriters when required to do so under this Agreement or
(iii) the Underwriters decline to purchase the Shares for any
reason permitted under this Agreement not due to the fault of the
Underwriters, the Company agrees to reimburse the Underwriters for
documented out-of-pocket costs and expenses (including the
reasonable, documented fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby up to a maximum
aggregate amount of $100,000.
13.
This Agreement
shall inure to the benefit of and be binding upon the Company and
the Underwriters, the officers and directors of the Company
referred to herein, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from any
Underwriter shall be deemed to be a successor or assign by reason
merely of such purchase.
14.
All notices and
other communications hereunder shall be in writing and shall be
deemed to have been duly given upon receipt thereof by the
recipient if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to
the Representative, c/o JonesTrading Institutional Services LLC,
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxxxx, XX 00000, Attention: Xxxxx Xxxx, Email:
Xxxxx@xxxxxxxxxxxx.xxx, with a copy to Xxxxx Xxxxxx LLP, 0000
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx X. Xxxxxxx,
Telephone: (000) 000-0000, Email: xxxxxxxxx@xxxxxxxxxxx.xxx.
Notices to the Company shall be given to it at Monopar Therapeutics
Inc., 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, XX 00000, Attention:
Xxxxxxxx Xxxxxxxx, Email: xxxxxxxx@xxxxxxxxx.xxx, with a copy to
Xxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxx, XX 00000, Attention: Xxxxxx Xxxx, Telephone: (000)
000-0000, Email: xxxxx@xxxxxxxx.xxx.
15.
This Agreement may
be signed in counterparts, each of which shall be an original and
all of which together shall constitute one and the same
instrument.
16.
THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO SUCH STATE’S
PRINCIPLES OF CONFLICTS OF LAWS.
17. The
parties hereby submit to the jurisdiction of and venue in the
federal courts located in the City of New York, New York in
connection with any dispute related to this Agreement, any
transaction contemplated hereby, or any other matter contemplated
hereby.
18. The
Company acknowledges and agrees that (1) the purchase and sale of
the Shares pursuant to this Agreement, including the determination
of the public offering price of the 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, (2) in connection therewith and with
the process leading to such transaction each Underwriter is acting
solely as a principal and not the agent or fiduciary of the Company
or its respective stockholders, creditors, employees or any other
party, (3) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the
Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement, and
(4) the Company has consulted its own legal and financial advisors
to the extent it deemed appropriate. The Company agrees that it
will not claim that the Underwriters, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or
the process leading thereto.
19. The
Company acknowledges that the Underwriters’ research analysts
and research departments are required to be independent from their
respective investment banking divisions and are subject to certain
regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make
statements or investment recommendations and/or publish research
reports with respect to the Company and/or the offering that differ
from the views of their respective investment banking divisions.
The Company hereby waives and releases, to the fullest extent
permitted by law, any claims that the Company may have against the
Underwriters with respect to any conflict of interest that may
arise from the fact that the views expressed by their independent
research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company
by such Underwriters’ investment banking divisions. The
Company acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to
applicable securities laws, may effect transaction for its own
account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be
the subject of the transactions contemplated by this
Agreement.
20.
Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state
income tax treatment and tax structure of the potential transaction
and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company relating to that treatment and
structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and
tax structure shall remain confidential (and the foregoing sentence
shall not apply) to the extent necessary to enable any person to
comply with securities laws. For this purpose, “tax
structure” is limited to any facts that may be relevant to
that treatment.
21.
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters,
or any of them, with respect to the subject matter
hereof.
22. The
Company and each of the Underwriters hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating
to this Agreement or the transactions contemplated
hereby.
If the
foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument will become a binding agreement
among the Company and the Underwriters.
Very
truly yours,
MONOPAR
THERAPEUTICS INC.
By:
_________________________________
Name:
Xxxxxxxx X. Xxxxxxxx
Title:
CEO
Accepted
as of the date hereof:
JONESTRADING
INSTITUTIONAL SERVICES LLC
By:
JonesTrading Institutional Services
By:
__________________________________
Title:
For
themselves and as Representative of the
other
Underwriters named in Schedule I hereto
SCHEDULE
I
Number
of Firm Shares
Underwriter
to be
Purchased
JonesTrading
Institutional Services
Aegis
Capital Corp.
Arcadia
Securities, LLC
Total:
_____________
SCHEDULE
II(a)
Pricing
Disclosure Package Documents and Information
a.
Pricing Disclosure Package Documents
b.
Pricing Disclosure Package Information
Public
offering price per Share: $[●]
Number
of Firm Shares: [●]
Number
of Option Shares: [●]
SCHEDULE
II(b)
a.
Issuer Free Writing
Prospectuses
b.
Written
Testing-the-Waters Communications
EXHIBIT
A
OPINION
OF COUNSEL TO THE COMPANY
[Provided
under separate cover]
EXHIBIT
B
lock-up agreement
[Provided
under separate cover]
EXHIBIT
C
Form of Press Release
Monopar Therapeutics Inc.
[Date]
Monopar
Therapeutics Inc. (the “Company”) announced today that
JonesTrading Institutional Services LLC, the lead book-running
managing underwriter in the Company’s recent public offering
of _______ shares of common stock, is [waiving] [releasing] a
lock-up restriction with respect to _________ shares of the
Company’s common stock held by [certain officers or
directors] [an officer or director] of the Company. The
[waiver] [release] will take effect on _________, 20___,
and the shares may be sold on or after such
date.
This press release is not an offer or sale of the securities in the
United States or in any other jurisdiction where such offer or sale
is prohibited, and such securities may not be offered or sold in
the United States absent registration or an exemption from
registration under the United States Securities Act of 1933, as
amended.
